6月19日（星期二）代表香港鄉郊基金向環保署遞交了對沙螺洞環評報告的意見書，並建議否決該疏漏甚多的環評報告，意見書全文（英文）見文末。
很意外發現環保署急急於下星期一召開環境諮詢委員會屬下環評報告委員會的會議，希望得到望委員會表態支持。
該環評報告厚達900至1000頁，各團體以各自的專業提出的意見篇幅極大，舉例說，香港鄉郊基金的意見書有28頁，一位大律師的意見書有100頁，如果環保署不把所有意見書交給委員們閱讀，有隱瞞之嫌，如果全部意見書都交委員閱讀，由於內容頗為技術性（科學或法律），加上頁數極多，委員們絕無可能在三個工作天內消化，匆匆開會實在是勉委員們之所難，要作出理性決定是不可能的。
這個環評報牽涉到一個會把全港第二最重要的自然保育優先地區（僅次於米埔）破壞的骨灰龕場項目，茲事體大，必須從詳計議，但是環保署為甚麼要趕呢？
我不知道答案，祇能夠勸環保署臨崖勒馬，不要為了不可言喻的原因而罔顧專業精神和公眾利益，以程序暴力和不顧眾多以理性為基礎的反對意見，硬闖環境諮詢委員會。
為政者必須知道，自己先放棄理性和對公眾利益的醒覺，必將面對更難駕馭的局面，到時可不要批評公眾不理性啊！
香港鄉郊基金的意見書如下：
Dear Sirs,
Request to DEP/EPD to
reject and to ACE to refuse to endorse Sha Lo Tung PPP EIA 203/2012,
by Hong
Kong Countryside Foundation
1.
Our Vision - Protect the Green Heart of the Pat Sing Leng Country
Park. We commend this vision to EPD and ACE. We request the Director of Environmental
Protection or her Deputy to reject this EIA and request the ACE to not endorse or
support this PPP and EIA. This is the
Top ranking Priority Site for nature conservation which is also a Country
Park Enclave. Being the top ranked site,
it meets all the criteria for becoming a Country
Park under the new Country Park
Enclave Policy, hence it is irrational to exclude Sha Lo Tung from the Pat Sin
Leng Country
Park. The
public interest requires that the Ecosystem Approach and the Avoidance
Principle (required under EIA Technical Memorandum and Convention on Biological
Diversity) be implemented by having the heart of Pat Sin Leng protected as Country Park. This Project and EIA is like a nail into the
heart of what should be a Country Park Enclave.
See fig. 1
attached.
2.
This letter summarizes material
showing that the EIA data when analyzed proves that the desired Development
Site is in and part of a core ecosystem
which is a priority for conservation as it has a diversity of valuable habitats
which are contiguous with and close to the Development Site and supports a rich
biodiversity with at least 19 species of conservation concern. A change of site
is required.
(a)
The EIA fails to apply the Ecosystem Approach and Avoidance
Principle in the EIA Technical Memorandum and does not assess an alternative
which avoids the Enclave in the Pat
Sin Leng
Country Park.
(b)
The EIA does not assess the Project pursuant to the Judicial Review
which adopted the Ecosystem Approach for Sha Lo Tung and fails to assess the
Project by reference to the OZP approved by the Chief Executive in Council which decision was confirmed by the High
Court judgment.
(c)
It is the duty of DEP/EPD and ACE
to reject this EIA and prevent long term and permanent damage.
3.
Before making a decision, we invite ACE members to inspect Sha Lo
Tung with us as this is essential to understand the
folly of this Project as well as to dispose of the contradictions and specific
errors in the EIA. The deadline for submissions being 19th June it
is clear that a meeting on 25th June, 6 days later, does not provide
time for consideration of the numerous defects and objections so we suggest
that the meeting be postponed.
4.
This objection is subsequent to the Hong Kong Countryside
Foundation’s Proposal for Better Conservation for Sha Lo Tung of 8th
September 2011 copied to ACE and subsequent correspondence. This was a detailed package
of documents proving that the breaches in the Sha Lo Tung PPP and that there is
a feasible alternative which avoids the damage caused and bad precedents caused
by the PPP. To understand the breaches see the 4 maps which were part of the
Proposal, the actual AFCD Priority Site Boundary Map omitted from all the EIAs,
the HKCF amended 2011 EIA Figures 2.2 and 9.6a
with Priority Site Boundary inserted so as to reveal the Breaches of the PPP,
and the 2011 Design Concept by Rocco Architects. The attached figure 1 (from EIA
report) is a quick reference showing the intrusion of the Project Site into the
Priority Site. The attached figure 2
zooms into the Project Site, to show the current Project Site relative to the
Priority Site boundary, the 2011 Project Site boundary and the important area
of high ecological sensitivity..
5.
The EIA again claims it is “fully in line” with the PPP but at least
4 Main Breaches have been identified and described in detail to ENB and EPD
in connection with the
similar 2011 EIA. The ENB/EPD have given no answer to this and there is no
valid defense. The result of the breaches is More Damage from
PPP instead of more conservation. The extra land to be gained (4 hectares) by
the Developer as a result of these Breaches provides the land to cause the extra
damage.
(a)
1st Breach, Development Site NOT on “sites which are in private ownership”. The Development Site is 90% Govt land. The EIA per page 3-1 cites only part of the
PPP objective, omits the fundamental objective of the PPP which was to conserve
Private sites, and thus fails to get around this breach of the eligibility
condition in the Guide to Application of December 2004 at 2.1 which states
“Who may apply? Landowners of the sites concerned…are
eligible to apply.” Hence this PPP
is not eligible.
(b)
2nd Breach, Development Site NOT inside AFCD Priority
Site boundary, instead Developer uses extra 2.6 hectares in OZP outside the Priority Site. Inside the
Priority Site the Developer owns No eligible private land for his Development Site
as a result of moving the boundary for his desired Development Site (see attached figure 2). EIA page 2-14 seeks to
create a loophole or exception from the PPP by arguing that there is nothing in
the PPP which says that the development must be “wholly” inside the Priority
Site. This is contrary to the NNCP of
2004 condition which states in clear precise terms that development “will be allowed at the ecologically less
sensitive portion of any of the Priority
Sites identified.” This 2nd
Breach is thus tacitly admitted and continues and 2.6 hectares or 63% of the
Development Site is outside the Priority Site.
(c)
3rd Breach,
Development Site is NOT in “less sensitive section” of the Priority
Site, it is just as sensitive as other parts of the Priority Site. By
granting 2.6 hectares per 1st and 2nd Breaches as part of
the 4.14 hectares, upstream and in the South
Valley and stream, this directly and
indirectly impacts a core ecosystem with woodland and seasonally wet and dry
old paddy and a water system and seasonal stream joining the Main Stream with
at least 19 species of conservation concern.
The EIA does not dispute this breach.
(d)
4th Breach, NOT a land exchange, 90% is a Private
Treaty Grant, 10% is surrender and re-grant of the O.4 ha the Developer
owns, and Outside the Priority Site.
There is no dispute on this, but the EIA wrongly calls the surrender and
re-grant a land exchange but this is a mis-nomer.
(e)
The 3rd Breach has been tacitly admitted because the 2012 EIA has attempted to get around the breach by cutting
out 1.44 hectares from the 2008 -2011 Development Site boundary (see attached figure 2) which is part of a core ecosystem area as summarized above.
(f)
This crude boundary line re-drawing
by itself does not protect the species and habitats which are still down stream
or below the cut and fill for constructing 4 columbarium blocks and about 5
other blocks next to or close above. The 4 columbarium blocks are to be built
on and near some woodland and the old dry and wet paddy fields which are part
of the hydrological and ecological systems.
(g)
There are other PPP breaches
which remove the Developer’s long term obligation to fund conservation of his
site under a trust he sets up, to be replaced by a one-off Donation to the
Government ECF which then shoulders the long term obligations instead. This puts the regulators EPD and AFCD in a
position of conflict or roles as they become co-managers through their position
on ECF.
(h)
ACE has an expanded responsibility under the NNCP of 2004 for making
sure PPP is not abused as well as making sure that the EIA process and the TM
is not abused.
This Project is in breach of the PPP but ENB and EPD have still approved
the EIA for release. ACE have been
misled. This Project has been processed
since about 2008 with these breaches.
(i)
Now a material change has occurred but
with no information in the EIA that 1.44 hectares has been cut out of the 2011
Development Site
(see attached figure 2). No explanation is given to the
public, so the logical inference is that the EIA and EPD must have made this change on the basis that EPD now accepts that the core ecosystem area centred around
the South Valley is ecologically sensitive. The Project being so close to and upstream of the cut-out sensitive
section, is in the wrong place, so must be rejected and the PPP process needs
to start again if it can meet the PPP conditions and meet existing planning,
land, safety and environmental issues and avoid the damage.
(j)
ACE can draw the logical conclusion that the material change reveals
that the 2011 EIA was materially faulty. This 2012
EIA is attempting to patch up inherent faults and in so doing makes clearer major
faults, such as the failure to recognize and follow the Ecosystem Approach and
the Avoidance Principle. The changes seen
in the 2012 EIA are not a process of
“avoiding by screening out the…Wet abandoned agricultural land adjacent to the
Development Site...” (with 3 species of fish etc) per Summary in page 13-10, but more likely a reaction to
the HKCF Proposal in September 2011 to ENB and EPD that this was part of the 3rd
Breach of the PPP in the 2011 EIA.
6.
3rd Breach still exists, Development Site NOT proved to
be “less sensitive section” of the Priority Site. Ecosystem
Approach and Data in EIA shows a core ecosystem is in and near Development Site
and it is ecologically connected to the Main Sha Lo Tung ecosystem. When the data on Sha Lo Tung is examined under the Ecosystem
Approach derived from the TM and Article 8(d) of the Convention on Biological
Diversity, and with “ground truthing” to reveal the true situation, it proves
there is a core ecosystem with biodiversity importance in or near the desired Development
Site, hence the data in the EIA proves (contrary to the EIA assertions and
conclusions) that the Project must avoid
the site.
(a)
Recognition of this core
biodiversity was forced by detailed objections from the public from about 2008
EA onwards.
(b)
No genuine Avoidance. The current attempt
to work around the 3rd Breach problem by cutting out 1.44 hectares
of valuable ecologically sensitive areas from the 2011 Development Site by
drawing lines on paper around some of them in the current 2012 EIA, still means
that the Development Site will directly and indirectly impact on the Priority
Site, habitats and species of conservation concern which are “adjacent” or down
stream or “Located next to the Site”
or “At least 10 meters from the Actual Works Areas” per Table 6.2 at page 6-5
and even closer below the blocks to be constructed with no natural buffer. However, this is not assessed.
(c)
The Ecosystem Approach was applied in the Judicial Review in Sha
Lo Tung Development Company Ltd v Chief Executive in Council HCAL 124 of
2000 which led to a judgment dated 9th
January 2001 by Cheung J. who rejected the piecemeal approach
of the Developer’s who argued that the northeast section “ is an area of low sensitivity.” Cheung J. found the Ecosystem Approach was
appropriate for dealing with protecting an area as SSSI and conserving it in
perpetuity, but this EIA wrongly persists in the Piecemeal approach. The
EPD and AFCD are thus alerted that this PPP and EIA are defective in approach and contrary to
AFCD’s approach to Sha Lo Tung. It fails to adopt the
Ecosystem Approach as required by the Technical Memorandum Annex 16,
Guidelines for Ecological Assessment.
(d)
In Section 5.2, Impact
Identification and Prediction, it states “the ecological assessment shall
identify and predict potentially ecological impacts caused by the proposed
development. There may be direct or
primary impacts such as loss of habitats and loss of species. However, many ecological impacts are induced
or secondary such as loss of feeding grounds.
Hence, an ecosystem
perspective highlighting the existing key relationships between different
species and the surrounding environment shall be adopted.”
(e)
This defective piecemeal approach in this EIA is also seen by the EIA
ignoring the OZP which at Explanatory Notes at 7.2.2
sets out the Ecological Significance by reference to the stream courses,
marshes and woodlands which are important habitats for other fauna such as
amphibians and fishes in a wetland ecosystem. This led to the General Planning Intention at
8.1 that “development within 30 meters of the water courses should be
strictly controlled.” At 8.3 after
referring to the stream courses and woodland habitats for dragonflies,
fishes and amphibians it states “The planning intention is to protect these
stream courses from human disturbance and development which may lead to
deterioration of the water quality of the streams and losses of the riparian
and nearby woodlands will not be permitted.”
This EIA does not assess the
impacts in relation to the Ecosystem Approach contained in the Planning
Intention and should be rejected by the EPD and AFCD.
(f)
The data still shows that the
Project is contra to the CBD Ecosystem
Approach and will adversely harm the Sha Lo Tung ecosystem. Sha Lo Tung requires to be protected as an
ecosystem including most of the 2011 and 2012 Development Sites in or near a core
area with a rich diversity of habitats with a mix of dry and wet old paddy or
agricultural land, grass and tall shrubland with regeneration to woodland, wet
areas with stream and woodland, and which supports at least the 19 species of
conservation concern found in and around here. These include King Cobra and
Banded Krait, top predators, and an indicator of high diversity and abundance.
(g)
For example, the 2011 EIA page
9-77 would have put the 3 species of fish, which are still part of the
Conservation Management Plan’s “primary
targets for conservation”, into tanks for protection against the Project close
by. This precaution is deleted in the
2012 EIA without explanation even though the Project is still close by. There is no explanation as to how the fish
and their stream and their South
Valley are better
protected now that there are lines on paper so they do not need the fish tanks
and Aquatic Fauna Translocation Plan.
There is no assessment and no protection.
7.
EIA omits or mis-describes the habitats in locations desired for
Development. Despite the recent 2012 recognition
of the sensitive habitats and species by cutting them out from the 2008-2011 Development
Site boundary, the 2012 EIA inconsistently persists in advocating the
Development Site above and close to these habitats and species. The EIA still fails to recognize the value and
sensitivity of the habitats and continues to downgrade or mis-describe or omit the
habitats at locations desired for the construction of the blocks for the
Project. The
EIA data when seen following the Ecosystem Approach and OZP shows this South Valley
is part of a complex and sensitive core ecosystem linked to the Main Sha Lo
Tung Valley ecosystem, and which has valuable ecological function, diverse
habitats and rich species, but this is not specified in the EIA text.
(a)
“Ground truthing”, and the
Rocco Architects Design Concept plan of 2011 (see attached figure 2) and 2012 at page3-12 and Volume II Annex B, the Drainage or
hydrology diagrams in Annex C Figures 3.1 and 4.1, all show the tributary South
Valley in the south of Sha Lo Tung which extends all the way to the south or
top of the Development Site and which drains through the Development Site northwards
into the Main Sha Lo Tung Stream. However
this South
Valley as a key feature is not made
clear in the Ecological assessment’s Habitat Map Figure 9.2 and Sighting
Locations 9.6a
and 9.6c which omit the old
agricultural land in the upper-middle section of the valley and the Seasonal Stream
in the South Valley.
(b)
The EIA Habitat Map Figure 9.2
and Sighting Locations Figures 9.6a and 9.6c by ERM omit all the woodland near the top part of the South Valley
at the south end of the Development Site where 2 columbarium blocks are to be
constructed. This contradicts the
Architect Rocco’s Design Concept plan, and the Landscape Master Layout Plan
Figure 2.10 by ERM, but these are omitted from the crucial Habitat and Species Sighting
Locations plans. The omission and
mis-description as only grassland shrubland mosaic contributes to downgrading
the ecology to facilitate construction of 2 columbarium blocks here. The
reality of valuable woodland and regenerating habitat shows this area is part
of a valuable ecosystem not appropriate for construction.
(c)
Ground truthing the upper-middle section of the South Valley,
chosen for the 4 columbarium blocks by means of cut and fill works,
confirms the map contours in Figure 2.9 and 3.6 and land ownership Figure 2.3
(in 2011 2.2) that the valley bottom is old paddy or agricultural fields. As the contours clearly show, the valley
bottom has the characteristics of paddy fields and it was wrong for the EIA to
downgrade this at 9.8.2 to only grass and shrubland mosaic “due to natural
succession” and without consideration that on
the ground it still has physical paddy field attributes of mainly seasonally dry
and wet abandoned fields hence with specific ecological values, and hence is
part of the valuable hydrology and ecosystem of the valley. The 2011 EIA had a reference to old
agricultural land with ecological value in the 2011 Development Site but this
has been deleted in 9-16 of the 2012 EIA.
This mis-naming of the upper-middle
valley contributes to the failure to identify the habitats for conservation,
contributes to the failure to properly assess and protect the valley as part of
an ecosystem which should be protected as opposed to being built upon.
(d)
Ground truthing the middle - lower sections of the South Valley,
which is below and very near 5 other
blocks (“Located next to the Site” and “At least 10 metres from Actual
Works Area” in Table 6.2 but closer in places) reveals that it is not just
“dry valleys” and it is wrong to assert “they seem to carry only limited flows
after rainfall” as per the Water assessment page 6-5, or “pools and ditches” and
only classified as “wet abandoned agricultural land” per the Ecological assessment at 9.6.7 and
page 9-16, but actually consists of an ecologically valuable mixture of wet abandoned
paddy, ginger plants, pools, and stream with woodland in a specialized and sensitive
hydrological system which varies in degree of water according to the dry and
wet seasons. It is notable that 9.6.7 has deleted
the denial of the stream which was in the 2011 EIA at 9.6.7 but still fails
to inform that in fact there is a stream and flows of water enough to support 3
species of fish. The existence of this stream is supported by the findings in the EIA
Landscape assessment at page 10-10 both in 2011 and 2012 EIA which states “Within
the Development Site is a small seasonal stream that is known to contain
protected fish species, and is also of high landscape value.” Hence descriptions of the wet or marshy land
or water flows or water course or stream are omitted from the crucial Water and
Habitat Figures and EIA Ecological assessments and a misleading description and classification continues to be
repeatedly relied upon by the EIA despite being contradicted by the EIA
Landscape assessment at page 10-10.
(e)
Further ground truthing reveals
that the South Valley lower section wet area and stream is covered in more
woodland than the Figures show and connects
to and is a tributary of the Main Sha Lo Tung Stream, hence the core
ecosystem has ecological connectivity to the Main Sha Lo Tung ecosystem as well as its
own special mix of habitats. This
omission further contributes to the EIA failure to assess and protect the ecosystem
from close by development according to the Planning Intention of the OZP.
(f)
These omissions and
mis-descriptions are repeated throughout the EIA and its Tables, which have the
effect of not identifying the ecological sensitivity, habitat diversity and
ecological richness of the ecosystem and minimizing or omitting the risks and impacts
from the Project.
(g)
The above and the EIA data with
rich species diversity of at least 19 species of conservation concern in and
around here, not counting the Golden Coin Turtle, which uses such complex and
sensitive habitats, thus proves that the Development Site is in the wrong
place. The “target species and habitats”
for conservation include 3 species of freshwater fish and the terrapins per EIA
page 3-4 yet this EIA fails to assess and protect this Seasonal Stream against
the Project. The EIA fails to prove it is
in a place which is less sensitive.
(h)
To apply the Avoidance Principle per the
CBD and TM, to avoid environmental loss, the Development Site must avoid this
site. The EIA, which even fails to note
at page 9-2 that the Convention on Biological Diversity was actually applied to
Hong Kong as from 9th May 2011,
fails to consider and assess the habitats accurately, fails to use the
Ecosystem Approach in the OZP and comes to a conclusion contrary to the data
and in so doing also fails to apply the Avoidance Principle.
(i)
These omissions and mis-descriptions
enable the Project to be built in the wrong site and shows the EIA has not proved this is a less sensitive
section of the Sha Lo Tung Priority Site for enhanced conservation of private
land. The Ecological or Environmental
Benefits claimed in the Project Description page 3-11 and Summary pages13-30 to
31 are thus not correct, the Development Site which is part of an ecosystem
including the South Valley with woodland and a Seasonal Stream, it is thus NOT proved
to be in a non-ecologically sensitive area, it is NOT proved to be in areas of
less ecological concern, the Summary does not reflect the data in the EIA
showing valuable habitat diversity with wet areas, seasonal stream and woodland
supporting high biodiversity, and it is wrong to claim that the Development
Site “avoids all of the ecological sensitive areas” without also noting that
the fragile and sensitive areas which are part of the area’s ecosystem will be
damaged or affected by the blocks built upon some of the habitats and valley
and thus damage the water gathering of the valley and seasonal stream. This Project is not a benefit.
(j)
The EIA demonstrates how wrong it is by asserting that the Project
is “a compatible development in a low value and discrete area of the site…” at
page 3-10. An analysis of the data contained in the EIA
shows the Project is not compatible with the ecosystem of which it is
part, it is not discrete or separate from the ecosystem, and it is not
low value.
Three errors of this magnitude
have contributed to the wrong site, the 3rd Breach, and a change of
site is needed.
(k)
The refusal for the EIA to
recognize the existence of the seasonal stream and rich diversity of habitats and
ecosystem enables the EIA Ecological Importance to be only Low to Moderate based
on the habitat of grassland shrubland, and Moderate to High based on the
Woodland habitat per Table 9.12 page 9-47 instead of the appropriate overall assessment
of at least Moderate to High but most probably High ecological importance if
the Wet abandoned paddy, the seasonal stream and woodland had all been
considered and considered as an ecosystem. The
continuing omission of the stream and mis-description contributes to the
failure to assess the ecosystem to be of High ecological importance,
enables the Development Site to be approved and fails to protect it from the
development close by if development is still somehow forced through.
(l)
For Water Quality Assessment,
Table 6.2 shows that only a fragment of the Valley is monitored but NOT for
Seasonal Stream or water but only as Wet abandoned agricultural land. As a result Table 6.6 at page 6-35 and 6-37
Key Water Quality Impact Assessment etc is wrong as the substantial loss of the
upper-middle section of the South Valley and its water resources is omitted and
not assessed, the seasonal stream is omitted so not assessed as a sensitive and
fragile ecosystem, nor protected, and of course there will be no monitoring of
the omitted stream.
(m)
The general EIA claims for Buffer zones do not exist for the key water
impacts.
Contra to the general assertions amounting to 50 meters of buffer zones at
page 3-13 and repeated elsewhere, there is no 20 meter buffer at the South
Valley, Table 6.2 at page 6-5 shows the Wet area (and the omitted Seasonal
Stream) is “Located next to the Site” and “At least 10 meters from Actual
Works Area”, there is no 30 meters between the carpark/Waste water
storage tank and the Main Stream, it is between 20 to 28 or at most 35 meters
from the Main Stream per Table 6.6 page 6-35, and there is no 50 meter buffer
for the large Sewage Tank, it is about 40 meters from the Main Stream per page
6-20. The Development Site is contrary to the
General Planning Intention 8.1 that requires development within 30 meters to be
“strictly controlled”.
(n)
For Monitoring Figure 12.2
shows there is no monitoring station in the South Valley, and Summary of
Monitoring Requirements Table 12.1 at page 12-6 to 7 has omitted the upper
middle section of the South Valley wet areas and the Stream so these will not
be monitored, only a fragment of the Valley will be monitored and then only
monitored for Wet abandoned agricultural land, not the stream and the rest of
the habitats. This Table 12.1 is even
worse than in 2011 because this 2012 version
has deleted “the small pools” from the description. This means the real effects of pollution from
the Development Site will not be revealed, monitored or prevented.
(o)
Such failures will contribute to the area not being protected by
specific legally binding conditions hence the EIA must be rejected.
8.
The Road damage. The extra damage to Landscape and Recreation
and Ecology caused by the PPP Breaches consists of an
excessively large site of 4.14 hectares for the Development Site, about 7
hectares of land take was previously estimated, but in reality the land
affected by Road works = 70 metres x 2,300 metres = 16 hectares of countryside. 16+ 4 hectares of Development Site = 20 hectares of countryside affected.
(a)
This provides an example of how
the 2012 EIA attempts to get around the impacts and faults revealed in the 2011
EIA. It attempts to minimize the damage
to the countryside by re-naming the “Construction Works Boundary” on all
the 2011 maps, see Figure 3.14 as the “Road Investigation Boundary” in the
2012 Figure 3.14 and other maps.
(b)
Table 9.12 in both 2011 and
2012 states there is only a 2.3 hectare “Project Area” for the Road which implies
that only a 10 metre width will be affected by the road widening, in which the Road and Verges occupy at least 6.5
metres leaving only 3.5 metres for cutting and filling and slope works and soil
nailing and all other features. This makes
it doubtful whether the slope engineers have actually advised the EIA writers.
(c)
It is said in both EIAs Figures
3.14 that “The construction work activities will be restricted to the proposed road
alignment, cut slope and soil nailing.”
However, this still leaves other types of Road work other than pure “construction”,
namely “site clearance works” in this case the clearance of vegetation, site
and ground investigation using machinery the movement of which causes
vegetation removal, soil removal, altering levels and alignments, cutting back
the upslope, filling the down slope. The original label was not wrong but the
new name in the 2012 EIA does mislead or confuse.
(d)
The 10 metres width
of construction works along the Road is contradicted by Figure 3.23 Road Works
Plan Cross Section diagrams which show about
20 metres to be affected on the horizontal plane at selected cross sections
when cut slope and soil nailing is included. This doubles the damage from
2.3 to 4.6 hectares.
(e)
The text at page 9-45 refers to
Figures 9.2 and 9.6 as showing “the main works boundary” along the Road. According to the Figures this “main works”
area is still about 50 metres wide. When account is taken of the actual topography
with steep slopes, the “main works” area affected will be realistically greater
hence 70 metres remains reasonable to cover both the widened road and the steep
slope works up and down the hillsides. A
walker along the widened Road will be impacted both by the cutting back and
filling in of several metres on the horizontal plane and he will be impacted even
more by a tall denuded soil nailed slope of many metres in height above him in
the vertical plane. Hence 70 metres x 2,300 metres = 161,000 sq. metres or 16
hectares. The EIA assertion of only 2.3 hectares Project Area for the Road,
i.e. 2,300 metres x 10 metres is not believable.
(f)
Yet parts of the 2012 EIA would
have ACE and the public believe that no vegetation will be affected beyond the 10
metres Project Area band of Road Alignment.
This is contradicted by page 9-49 which acknowledges the risk and says
“soil nailing can be installed carefully to avoid existing trees…”. The
soil nails are of course well beyond the 10 metre Road Alignment. For
vegetation there are vague admissions of “limited disturbance”. If the Project Area had fencing and hoarding
at 10 metres to protect the vegetation against disturbance no doubt the contractors
would object saying they could not do all the works needed within that figure,
and would have to cause “limited disturbance” to a distance up and down the steep
hillside which will amount in reality to greater destruction.
(g)
If there is no Works Boundary
the workers will not know what is out of bounds, where does work and earth
spill and damage stop, especially for the downslope damage and unauthorized
damage cannot be prevented. The EIA is
not believable. The real vegetation and countryside
swathe of destruction from the Road widening is more likely far greater than a 10
metres Project Area and about 70 metres
wide affected through what is currently well vegetated countryside of high
recreational and landscape value. This is the picture the EIA is trying to
avoid and the Photomontage Figure 10.18 which purports to be the view from
Cloudy Hill shows the Road widening scars are not visible even “without
landscape mitigation”.
(h)
“Temporary disturbance” in the
EIA actually means 5 to 30 years to recreate. At page 9-65 it is said that
“…soil nailing is not included in the habitat loss estimates” because it will
be “temporary disturbance” to soil, vegetation and associated habitat. However in the EIA Tables 9-.15 to 9.17 grassland/shrubland mosaic, plantation and
woodlands is said to take 5-10-20-30 years or more to recreate. Temporary
disturbance is a mis-leading euphemism. As one of the Harbour Protection
cases showed, a reclamation being “temporary” still needs to be fully assessed.
(i)
The EIA has not disputed the actual estimates of tree and vegetation
loss estimated at 78% along the Road. Dealing
with the bigger trees only because they are only trees counted in the survey,
305 out of 673 are to be cut or removed, page 10-16, ie 45% of the bigger trees are lost along the road. Compensation planting elsewhere of 2
hectares is going to leave a road scar for about 16 hectares, page 9-81. The
Road has 26 species of conservation concern, it is part of the Country Park
experience and the countryside damage over 2300 metres of what is mainly a safe,
pleasant shady track for walking and exercise, is contrary to the public
interest.
(j)
The EIA fails to assess the impact on recreation and walkers in several respects, either not regarding them as Sensitive
Receivers or regarding them as Travellers as passengers in cars and because the
EIA does not assess the Road on the basis of the well known fact that it is
used by many people as a walking trail or place for daily exercise.
(k)
The EIA is not reliable about the countryside damage caused by the
Road and must be rejected by EPD and ACE.
9.
The Road and Traffic impact on Country Park
visitors and walkers was not assessed. Hikers on the Road are regarded by the EIA as
“Travellers” or passengers in cars, with transient impact, (see Table 10.8) and
not as “Recreation” users such as a hiker on a trail or a cyclist on the Ting Kok Road.
Hence the EIA repeatedly omits to assess the impacts on a pedestrian walking
for 45 minutes or doing daily exercises and Tai Chi etc and being impacted by
noise, heat, fumes and visual impacts for extended periods. Because of the massive demand for access
caused by 60,000 niches and other attractions, the long one way road will be
overloaded in capacity so Traffic and Crowd control problems require a limit to
be enforced at 7,400 people per day
mostly in 24-seater buses, 7,400 ÷ 24 = 308 buses x 2 trips up and down = 616
trips. In a 8-hour Columbarium operation
day it means more than 1 bus a minute, about one every 47 seconds so that a walker would face 58 buses on his walk up
to the Country Park and another 58 on his walk down. This assumes the rationing of users can be
enforced. The numbers are likely to
exceed the limits on some days. This environmental nuisance and hazard to recreational
or Country Park users was not described nor described by the EIA and EPD and ACE
should reject it.
10.
A hazard and liability is caused. No right thinking administrator would cause
or permit the making of a hazard whereby crowds in excess of the Road design
capacity would be attracted, and then have to be limited by elaborate
impractical quotas under contractual provisions. Attempting to enforce the limits to 2,500 at
one time at the Columbarium at the top of the road, and 7,400 a day will be prone
to failure and when a failure occurs, there is a high risk of trouble and
accidents, exacerbated by crowd control problems. This risk will not be just on a few
weekends. Based on the above figures, 240,000
visitors limited to 7400 a day would have to be spread over 32 days of visits,
16 weekends or 4 months, hence 2 months
on either side of each Ching Ming and Chung Yeung festivals so there will be
increased risks and impacts for about 8 months a year.
11.
Permanent loss to Country
Park users and exercise
walkers. Imagine you are a walker taking 45 minutes to walk up the 2½ kilometers and trying to
botanize, photograph butterflies or birds or do your daily exercise. Instead of peace and quiet and numerous
species in the shady woods you will find
(a)
no shade, no woods, little vegetation, 78% gone;
(b)
no peace and quiet, buses every
minute or 45 seconds, up and down, noisy and smelly and disturbed so little
chance to observe wildlife;
(c)
hot and sunny with reflected
concrete from widened road and new trees struggling to grow;
(d)
road kills, little wildlife, no point walking, or photographing butterflies,
no point exercising and inhaling fumes, the whole Country Park
visitor experience is destroyed;
(e)
when you get to the top,
instead of getting more remote and beautiful it gets worse – noisier with about
2,500 people at least with associated loud hailers, engine noise, air-con
noise;
(f)
added to this is the smell of
food, joss sticks and incense, fumes, litter and
(g)
visual blight of 10 blocks on
ridgeline, valley, woodland and wet areas and close to the peaceful Country Park (see illustration in attached figure 3).
(h)
The Sha Lo Tung serene
beautiful experience will have been destroyed and your enjoyment and
introduction to the Country
Park is substantially
reduced. Instead of the objective of “enhanced” conservation there will be enhanced
destruction. The Road is under the
Developer, and not to be managed for conservation by any NGO.
(i)
This loss would have been
enabled because these countryside values
and the impacts were not assessed or described because the EIA omitted Sha Lo Tung Road from classification as a
“walking trail” and refused to classify it as “Recreation”, see Table
10.8 This ‘no walker’ attitude is contrary to the
Summary page 13-32 which states “Being served by an access road and as one of
the major entrances to the Pat Sin Leng Country Park, Sha Lo Tung Area is a
nodal point of a number of popular walking trails.” The attitude
is also not consistent with building a “pedestrian footpath” along the widened
road, which is an admission that there are walkers and recreation. The refusal to classify the Road itself as a
walking trail and used for recreation is not rational.
(j)
As a result of the refusal of
the EIA to classify the Road appropriately, there is no assessment of the
impacts on walkers and daily exercise takers who spend a considerable time on
the Road. There has been no assessment based on them being Visually Sensitive
Receivers ie seeing the damage all around them and the oncoming buses 115 times
in their walk and the blocks above them, as Noise Sensitive Receivers ie
hearing the repeated frequent buses and operations for thousands of columbarium
users, and Air Sensitive Receivers ie breathing the fumes and emissions from
buses and others and the Development Site. It
demonstrates that the EIA does not care about vehicle diesel air pollution on
the health and well being of ordinary walkers and exercisers. Does EPD and ACE support such an attitude? Clearly the EIA must be rejected.
(k)
The current 2012 EIA has tacitly admitted the presence of walkers as
Sensitive Receivers and the need to mitigate the nuisance
from the noise and air pollution impacts by talking about electric buses in the
Summary 13-2 and in the Air and Noise chapters.
These are important admissions of the air and noise impacts and harm
caused to walkers and show that the continued arguments about “separation
distances” are no longer valid because the walkers as Sensitive Receivers are
very close to the noise and emissions. Electric
buses would still fail to mitigate the disturbance and visual impact of
repeated vehicles, and other service or private vehicles still labouring up
hill and down, and would not remove the long term and substantial visual
impacts of 10 large blocks on the hill on users of the road for walking and
exercise.
(l)
Electric buses are just
generalities and not a currently practical solution. Having had to make these
admissions the EIA should have done a proper assessment of the Sensitive
Receivers or else admitted that the impacts could not practically be
mitigated. Based on the precautionary
principle, it is the duty of ACE to reject this EIA which fails to describe,
assess and protect this countryside experience.
12.
There is no assessment of institutional pollution from about 480,000 people a year
(60,000 niches x family of 4 = 240,000 x 2 visits a year) some of which will
enter the soil and end up as part of the ground water and seepage in the wet
areas and stream below and some will be discharged to the Main Stream. The cumulative impacts of pollutants from a
commercial institution attracting large numbers of people long term will be significant
for sensitive species. For example,
years of discharges with emissions of fumes and dust from many sources with
ashes from incense mixed with waste waters containing spills or deposits of
commercial and institutional chemicals such as disinfectants, detergents,
mosquito spray, insect and cockroach control products, polishes, cleaners, are
likely to adversely affect dragon flies, moths, butterflies, fish, frogs, other
aquatic life and no doubt Golden Coin Turtles.
There is no application of the
Precautionary Principle for the long term Cumulative impacts from such
institutional pollutants in the EIA although the CMP emphasizes the need for
such.
13.
The EIA omits to assess the South Valley
on the basis it has a stream or water course which
has its origin in the desired Development Site and flows in and below the
Development Site and is sensitive to large scale institutional impact. The impacts
and risks for the aquatic and amphibian species found here are not specified nor
the risks assessed in the text but the data has the material to prove there are
many species of conservation concern.
14.
Cut and fill and 4 blocks, pollution and dehydration of South Valley. This is planned to be cut and filled
for the construction of 4 columbarium blocks in the upper to middle section
with 5 other large blocks immediately on the hill above the middle and lower
valley. This South
Valley water system will either suffer
pollution directly or indirectly from the Project and dehydration from the diversion of the polluted waters of the Non-Vehicular
parts of the Development Site away from the South Valley
water course. The dehydration of the
South Valley which has a sensitive
hydrological system has not been assessed nor disputed by the EIA. Currently a significant portion the ground
and surface waters in the upper and middle sections of the South Valley supplies
the middle to lower northern section of the South Valley which has a Seasonal
Stream, but with the Development Site built in the upper and middle section of
the South Valley this water will be diverted to the Wastewater Storage tank at
the bottom of the Development Site and then discharged to the Main Stream, see
Table 6.5. Hence what survives of the South Valley
is deprived of a major portion of its water.
The South Valley Seasonal Stream
is a fragile and sensitive hydrological system and vulnerable to drying out
from such dehydration and its 3 protected fishes and 2 amphibians will be at
risk of extirpation from these ecosystem impacts but this has not been assessed
by the EIA.
15.
The Ecosystem Approach to assess the sensitivity and ecological
value of the South Valley Ecosystem was stipulated in the Judicial Review in Sha Lo Tung
Development Company Ltd v Chief Executive in Council HCAL 124 of 2000 which
led to a judgment dated 9th January 2001 by Cheung J. Using the piece meal approach the developer’s
argument was that the north east section
“ is an area of low sensitivity.” (Note the similarity to the current EIA
arguments) The evidence and Ecosystem
Approach of the AFCD summarized at pages 19-22 in that case supports the
protection of the ecosystem in and near the Development Site, the South Valley
Ecosystem, now. The evidence and
reasoning includes
(a)
Stream courses were unpolluted
and not commonly found in Hong Kong;
(b)
Unique species of dragonflies
in that case ( in this area many species of conservation concern, at least 19
species, a hot spot or concentration of species in Sha Lo Tung)
(c)
Designation of the Northeast
was not due to presence of diverse faunal and flora (which the South Valley
ecosystem has with at least 19 species) but mainly for maintaining stable flows of water in the stream
course in the area especially during the dry season, bearing in mind that the
stream fauna immediately down stream of the Sha Lo Tung basin had very high
ecological importance;”
(d)
To prevent pollution to the
stream courses and protect the integrity of downstream water course system, it
was necessary to maintain a 30 metres buffer on both sides of the stream
courses and
(e)
Unusual amphibians in the
Sha Lo Tung area which were endemic in Hong Kong (this applies to the South Valley
ecosystem which also has 3 special fishes) .
(f)
Thereafter, Mr Keith Wilson,
the expert for AFCD gave evidence that a comprehensive or a holistic approach
was necessary to protect the ecosystem and the Judge accepted this. In particular, “Mr Keith Wilson said that a
comprehensive approach should be adopted in considering a stream system. Any stream populations downstream of the Sha
Lo Tung basin would be affected by upstream development works and any
alteration in base flows. The
designation of the SSSI zone in the northeastern sector was based on this
consideration rather than on the fauna and flora in the area.”
(g)
Further reasons were quoted by
Cheung J at page 22 as follows: “although the northeast part of SLT had no very
rare species of international importance, it had been included within the SSSI
zone on the following grounds:
- It was identified
as wetland and formed part of the ecosystem;
- it had a diverse
community of fauna and flora;
- it
had a sponge effect by providing stable flow to downstream water courses
especially during the dry season; and
- it
would prevent the downstream water courses which were also of high ecological
importance from being affected by detrimental activities such as construction
works.”
16.
Having considered the evidence
in the context of Sha Lo Tung, Cheung J at page 24 identified the authority for
protecting land of lesser intrinsic scientific interest if it is part of the
same environmental unit as land which is of interest. Cheung J stated: “however the ‘holistic’ approach as suggested by AFCD is clearly
something that the Board was entitled to adopt in designated the northeast part
as SSSI zone as well. In other words, it
is the streams and the wetlands as a
whole which would form part of the ecological system for Sha Lo Tung. The northeastern marshland is not merely a
buffer land, it, together with the streams formed the backbone of the
ecological system of the Sha Lo Tung natural habitat.”
17.
Despite this clear exposition
of the Ecosystem Approach for dealing with protecting an area as SSSI and conserving
it in perpetuity, this EIA wrongly persists in the Piecemeal approach rather
than the holistic approach. The EPD and AFCD are thus alerted that this
EIA is defective in approach and contrary to AFCD’s approach to Sha Lo Tung. It fails to adopt the Ecosystem Approach as
required by the Technical Memorandum Annex 16, Guidelines for Ecological
Assessment.
(a)
In Section 5.2, Impact
Identification and Prediction, it states “the ecological assessment shall
identify and predict potentially ecological impacts caused by the proposed
development. There may be direct or
primary impacts such as loss of habitats and loss of species. However, many ecological impacts are induced
or secondary such as loss of feeding grounds.
Hence, an ecosystem perspective highlighting the existing key
relationships between different species and the surrounding environment shall
be adopted.”
(b)
Further, at 5.2.3, the
synergistic and cumulative impacts are required to be assessed and listed
out. This has not been done under the
Technical Memorandum in this EIA and hence the assessment purported to be done
under Annex 8 is defective.
(c)
This EIA does not comply with
the Ecosystem Approach laid down in the case law which confirmed the OZP and should
be rejected by the EPD and AFCD.
18.
Discharge of institutional wastewater to ‘soakaway’ close to SSSI or
into stream system is not assessed and is wrong. The polluted and contaminated waste waters from the Non-Vehicular parts of the Development
Site per EIA Table 6.5 at page 6-21, 9-63 are to enter the ground water
directly in the Development Site Non Vehicular Zones, including landscaped and
porous paving area and swales or flow through areas or be routed to and accumulated
in a 30 cubic meters Storage Tank close to the Main Stream (about 20- 28-35 meters
above stream, under the new car park) where the effluent will have
grit/sediment removed (but not the pollutants and contaminants) and then the allegedly “clear” but actually grey
water or contaminated effluent will be discharged to the buffer zone of
“naturally vegetated land between the development boundary and the existing
stream system”…and “into the existing stream system” see page 6-19 and Table
6.5 page 6-21.
(a)
This
contradicts page 9-72 which asserts that with the provision of the 20 m buffer
the “riparian woodlands which served as wildlife foraging/roosting grounds
(particularly for Chinese Tiger) are well preserved.” A normal buffer zone is for species to
forage, hide or breed, not for effluent/pollutant discharge and soakaway close to
an SSSI and stream.
(b)
There is no stream buffer of 30
m and 20 m hence no total of 50 metres separation per Table 6.6, page 6-37 at
this critical area. The SSSI is narrower than 30 metres from the Main Stream in
this critical area. The discharge will be
unacceptably close to the stream itself and either in or near the SSSI. No effluent should be discharged into or so
near an SSSI. This is contrary to
standard water pollution control principles and if the TM for discharge into
Inland Waters etc is accurately quoted in the EIA 9-58 that “no treated
effluent is allowed to be discharged within 100 m of the landward boundaries of
a site of SSSI”, in breach of that as well.
(c)
This risk is omitted from the
Summary at page 13-4 and the Summary page 13-16 is wrong in stating “no
wastewater will be discharged into watercourses.” EPD did not correct this. The
EIA does not warn that there is a risk from long term discharges of
institutional wastewater into a buffer zone or an SSSI. EPD and ACE have a duty to reject this EIA.
19.
Instead of applying the Avoidance Principle and moving such projects
out of sensitive areas, there has been Increase of
the scale and impact of damage in or near sensitive areas, the water shed and
the air shed of Sha Lo Tung. The
Avoidance Principle which requires Developers to consider a “change of site” which would avoid the
damage caused by the Road widening and the Development Site which is in the
South Valley tributary and upstream of sensitive habitats with rare or
endangered species. Since PPP permits land exchange for conservation, there can be no
policy objection to applying a genuine ex situ land exchange to a site which
was genuinely ex situ or outside the valley.
20.
Failure to apply the Avoidance Principle
and comply with the EIA Ordinance Technical Memorandum. The Avoidance Principle is part of international best practice for
conservation. This has statutory force
under the EIA Ordinance through the Technical Memorandum. TM 4.4.2(f) requires among the factors to be
considered by the EIA “whether adverse environmental affects are avoided to the
maximum practicable extent.”
21.
TM Annex 16, Guidelines for Ecological Assessment, at 5.4 deals with the 3 methods for mitigating impacts in order of
priority, i.e. Avoidance, Minimizing and Compensation. In respect of the avoidance principle it
states “Avoidance: potential impacts
shall be avoided to the maximum extent practicable such as adopting suitable
alternatives (e.g. change of site, design, construction method, alignment,
layout, programme, etc.). In extreme
cases, when the ecological assessment identifies some very serious impacts
which could not be mitigated, the “no-go” alternative may be the only realistic
option and shall be included and assessed against the other options.”
22.
EPD has approved the EIA for
release in spite of
the fact that it has NOT required the Developer
proponent to consider, nor has the Developer considered or assessed, our
Proposal which is a “change of site”
and a feasible alternative. The only alternatives are layouts and design
options per 2.3.3 and Figures 2.7 to 2.9.
There is not even an explanation why the 2011 EIA Development Site
option was rejected in 2012 after being deemed the most acceptable in 2011. There is thus No compliance with the Avoidance
Principle and the Ecosystem Approach was not considered as a reason for avoiding
damage to the ecosystem in Sha Lo Tung. The Hong Kong Countryside Foundation
Proposal has been proved to be feasible and better. We have received no objections in principle
from Government so far.
23.
Maladministration. It was wrong of ENB and EPD to authorize the
release of the EIA when they had not dealt with the Breaches of the PPP and
whilst the EIA claims that it is fully in line with policy. One impression is that the ENB and EPD
condone the Breaches. Alternatively they
are abdicating their responsibility to regulate the PPP and to reject Projects which
are in breach of the PPP. This is
maladministration.
24.
The EIA must be rejected as being contrary to the policy and intent
of the Country Parks Ordinance per Section 4 of Cap
208, this PPP
(a)
will discourage use of the
Country Parks for recreation and tourism,
(b)
will not protect the vegetation
and wildlife inside Country Parks,
(c)
will not provide for public
enjoyment of the Country Parks and
(d)
will not preserve and maintain
buildings of historic or cultural significance within the Country Park.
(e)
SLT PPP will spoil the
landscape, recreation and ecological values of nearby Pat Sin Leng Country
Park. The Country Park experience, which actually begins
on the Sha Lo Tung Road,
will be substantially damaged.
25.
This Project is contrary to
the Planning Intention which “is primarily to
conserve the areas of ecological significance, to preserve the natural
landscape, to promote conservation and to maintain the rural character of the
area …” See OZP of February 2005 under
OZP No.S/NE-SLT/4 of February 2005.
(a)
Paragraph 7.2.4 states “The
area contains extensive areas of high quality natural landscape. Sha Lo Tung has a recognized distinctive
landscape character which is extremely attractive …” In summary, the planning intention is “to ensure minimal deterioration of the
existing landscape quality, the existing ridgelines must be retained and the
development must not be allowed to encroach upon slopes, and all fung shui
woods, secondary woodlands and stream courses should not be affected.
Development should be confined in the valley areas where human scale buildings
are traditional and in harmony with the existing character.”
(b)
Paragraph 8.3 in relation to
streams states . “The planning intention
is to protect these streamcourses from human disturbance and development which
may lead to deterioration of the water quality of the streams and lossess of
the riparian and nearby woodlands will not be permitted.”
26.
The Landscape damage. The Blocks have become higher than before,
now 3-4 storeys, instead of 2-4, the 8 blocks of Columbarium and Quarters are
about 10 metres tall, the NGO block is about 18 metres and the Hall etc about
21 metres tall. These biggest blocks are on the ridgeline. The blocks are contrary to the human scale
and traditional style required by the OZP.
The Landscape assessment is not done to meet or comply with the OZP so
its subjective assessment is contrary to what is required. An assessment done by reference to the OZP
would show the Project to cause substantial and permanent and unacceptable
impact to those OZP identified values which was not realistically capable of
mitigation. Hence most of these planning intentions are broken by the Sha Lo Tung
PPP and EIA . The EIA Landscape Assessment did not assess according to
these principles so the EIA must be rejected for non-compliance with existing
Landscape requirements. EPD and ACE have a duty to reject this now
and must NOT cause future Town
Planning decisions to be prejudiced or affected by accepting a defective EIA
which did not assess according to the OZP.
27.
The 2012 EIA amendments aggravate the damage to the environment,
some examples.
(a)
The existing illegal road into
Sha Lo Tung is no longer to be blocked off by the road terminating in the
Columbarium carpark as in the 2011 plan, but will be kept open to cause future
risks of development applications and illegal vehicle access.
(b)
The existing latrine which is
too close to the main stream and SSSI will now be retained and become
overloaded from the increase in users attracted by the Project causing
unacceptable pollution.
28.
Contrary to long existing Land Policies. It was contrary to precedent and Land policy
to allow Private Treaty Grants, to a sole bidder, and in such a large scale of Unallocated
Government land which is Green Belt. It
is even more objectionable when this is in or near a Country Park Enclave in an
area of outstanding natural beauty.
Special grants need approval from the Chief Executive in Council who has
to consider the wider public interest in protecting the environment contained
in all the above policies.
29.
More damage, more expense, more risk to countryside, but more profit
for some.
Instead of the Objective of Enhanced Conservation there has been
enhanced profit, a revenue estimate of $6 billion, a land premium to Government
of $3 billion and peanuts and problems for conservation. Apart from being a major impact on the
countryside which could be avoided, this Project creates a bad precedent
contrary to the public interest in conservation in Hong
Kong. By a special private
grant of 4.14 hectares to a private Developer the PPP provides excessive
compensation, a revenue of $6 billion is generated, a land premium of $3
billion is generated and this raises excessive expectations that further
unallocated Green Belt land is for sale provided it is near a top quality
Priority Site for Conservation or a Country Park. This is part of the PPP being a perverse
incentive contrary to Decision of the Convention on Biological Diversity. It acts against the Country
Park objectives and the Country Park
Enclaves Policy and Hong Kong’s new
obligations under the CBD which ACE has a duty to uphold.
30.
The sensible solution in line with the Convention on Biological
Diversity is for the heart of Pat Sin Leng to be designated Country Park. This with land title
transferred to Government leads to the highest land and planning security and clear
strong enforcement under the Country Park Regulations. This is better governance than an NGO with no
statutory power trying to enforce over a patchwork of pieces of private land
owned by the Developer and a patchwork of zones some of which are still zoned V
or GB and where the main risk of adverse impact comes from the columbarium Development
Zoning to which they are linked.
31.
The gravity of the failures in the EIA stems
from the PPP being “a perverse incentive” per CBD, and because the Breaches in
the SLT PPP enable extra damage. The
result is enhanced damage, not enhanced conservation, of Hong
Kong’s top Priority Site Country Park Enclave but the EIA fails to
fully describe and quantify all the impacts.
It fails to state that the impacts can be avoiding by moving the
Columbarium outside SLT. In order to
protect the public interest, the EIA must be rejected.
32.
The approach of the new 2012
EIA is to repeat the 2011 EIA but with attempts to get around the failures and
inherent defects in various ways as described herein and such as:
(a)
Omitting findings based on the
data which favour conservation at the Development Site but repeatedly making statements
in favour of the Project;
(b)
Omitting the evidence about the
importance of the habitat and ecosystem in or near the Development Site for the
Golden Coin Turtle previously given;
(c)
Omitting the evidence about the
importance of the habitat and location for moth species previously given;
(d)
unproved mitigation such as
hiring 20 electric buses to go up and down the hill, which amounts to an admission
of the noise and air pollution problem on walkers - there is no practical solution
except change of site;
(e)
impractical and non-enforceable
measures to “encourage” all columbarium visitors against entering the Country
Park and leaving the columbarium if they want to - there is no solution except
change of site;
(f)
trying to prevent niche owners from
lighting incense or joss sticks when worshiping their ancestors, which is a
tacit admission of part of the institutional pollution problem, but for which
there is no avoiding, other than change of site.
The result is an EIA which does not actually provide a genuine mitigation
solution so that impacts remain with defective avoidance, impractical
mitigation or unenforceable mitigation so the long term cumulative impacts
occur. The result is a document which
does not provide reliable guidance to protect the environment and so cannot relied upon by Government lawyers
and departments to draft the legal terms and conditions in the agreements and
leases which are needed to protect the environment against the actual risk and
impacts.
33.
EIA system has lost credibility and trust. These failures would not
have been tolerated if Hong Kong still had an
EIA system which was credible. The
system has been undermined and discredited as a method for independently and
professionally examining projects which harm the environment. There is a loss of public confidence in the
EPD to protect the public interest in health and the environment. It is the duty of ACE to restore some credibility
by rejecting this defective work by EPD and this EIA.
34.
Conflicted administration and regulation.
By combining the posts of Permanent Secretary for Environment and the Director
of Environmental Protection into one person, a backward step in environmental governance
was introduced after the Long Valley Case.
As a result the policy administrator whose role is to carry out
Government projects and policies has a conflict of interest and role with that
of Director of Environmental Protection whose task is a professional one, to regulate
and enforce the EIA Ordinance for the purposes of protecting the environment,
professionally assess and reject or accept Projects based on the facts, the
law, the Technical Memoranda and EIA Ordinance and professional expert opinion
and expert evidence. The two jobs must
be separated as soon as possible.
35.
Hence there is a need for the current DEP to step aside and the SLT
PPP should be handled by a Deputy who must be somebody not under the influence
or direction of the DEP. This is because when the two roles are
combined in one person who is not an EIA professional, it is likely that the
policy decision will win over the professional judgment. The result has been and will be decisions
which favour the politics and subjective views of the policy administrator rather
than a professional judgment of the DEP to protect the environment in the
public interest based on all the relevant legal and technical considerations.
36.
Hence, in Sha Lo Tung, there are numerous breaches of the Technical
Memorandum but these have either been missed or
else not enforced. Some examples.
37.
The EIA does not attempt to
assess the realistic alternative to avoid damage to Sha Lo Tung by a genuine
ex-situ land exchange, to achieve a change
of site to better achieve the conservation objective. Sha Lo Tung could then come under
professional management of the Country Park Authority as Country Park with statutory
enforcement under the Country Park’s Ordinance, the Town Planning Ordinance, and
title would change hands so that the Private Land, about 45 % of Sha Lo Tung,
becomes better protected as public or Government land rather than developer
owned Village and Agricultural land.
38.
There is no assessment of a smaller alternative to the huge scale of the Development Site which is still 4.14
hectares, there is no justification for 10 blocks on the landscape, there is no
justification for such a large columbarium with such crowd impacts. The alternative of reducing impact by
reducing size was not considered nor assessed. There is no justification for
the large size and numerous attractions in each building such as large halls
and displays, 4 quarters blocks, 50 workers, 30 volunteers, and housing for 30
occupants, which is not justified in a Priority Site for nature
conservation. There has been a blind eye by EPD. The result is a development which is out of
proportion to the landscape and planning and the access and crowd control
problem of a one-way road which provides hazards for the future. The Road cannot cope with the actual demands
of hundreds of thousands of visitors unless visitors are being constantly turned
away by the Police and others at public expense.
39.
These problems and impacts are attributable to the Breaches of the
PPP and the failure to apply the Technical Memorandum. The only alternatives
considered, the 3 Options, are not “change of site” nor change of scale alternatives
but cosmetic change of design and thus do not comply with the Avoidance
principle and the TM.
40.
There has been a failure to follow the Ecosystem Approach which is
required by case law, the OZP, the TM and under the CBD. This requires that Sha Lo
Tung be regarded as a whole ecosystem, its hydrology system, air shed, water
shed and landscape be looked at as a unit, not cut into artificial pieces (the
Piecemeal Approach) based on proving that the desired Development Site, and
desired Road widening is not valuable when looked at in isolation from its
context and surrounding system. The data
in the EIA contradicts the EIA Conclusion and when examined using CBD
principles shows the Development Site, even though cut down, still does not
qualify as a “less sensitive site” but is in fact part of and near a core ecosystem,
a sensitive and species rich mosaic of diverse habitats with seasonal stream,
woodland, wet and dry agriculture and grassland/tall shrubland with
regenerating woodland richness. The Chief Executive in Council supported
the Ecosystem Approach used in the 2000 case for Sha Lo Tung OZP, and this was
supported by the High Court. It would be
perverse and unreasonable for EPD and ACE now in 2012 to assess this EIA in a
way contrary to both the Chief Executive and the Court decisions.
41.
The EIA omitted to
assess the South Valley Ecosystem in relation to and as part of the Sha Lo Tung
wetland system (i.e. no ecological interpretation
of the seasonally wet abandoned agricultural land within or near the
Development Site and the Seasonal Stream which is either within or close to the
Development Site.) The EIA only classifies
the valley as grassland/shrubland mosaic (hence omitting the old paddy and the
woodlands from their Development Site ), and a fragment of the wet abandoned agricultural
land with pools or ditches (thus omitting the seasonal Stream). These classifications are misleading and contradictory
to the findings of species dependent on water such as Chinese Bullfrog, Lesser
Spiny Frog and 3 fish species of conservation importance (See Figure 9.6a) and contradictory to the findings in the
Landscape assessment of the EIA page 10-10 which confirms the existence of the
seasonal stream with protected fishes.
The EIA fails to inform that the Development Site is connected with the
wetlands within the Main Sha Lo Tung Valley.
This linkage and the observed wet conditions is evidence that the
Development Site has suitable habitat for the globally critically endangered
Golden Coin Turtle. The EIA under rates
the sensitivity and importance of the habitats within and affected by the
Development Site and fails to assess the impacts and risks.
42.
The Road and countryside will be devastated by widening. The EIA has failed to
assess the loss of recreation value and loss of diversity. It has 26 species of conservation concern,
this number comes from the data but is not actually provided in the EIA text. This is of course additional to Road’s great
amenity and recreational value, the pleasant Country Park
introduction and exercise walk.
43.
The better alternative is genuine non in-situ land exchange. Apply the now accepted
concept of land exchange for conservation.
The no-damage solution is the Proposal to use the Country Park’s Enclave
Policy and, applying the Avoidance Principle, to provide a genuine non in-situ
land exchange so that land outside the water shed is used for development, and
to provide limited compensation but which is appropriate through a value for
value non in-situ land exchange in lieu of resumption. Land exchange so that
Government owns the Village land will secure Sha Lo Tung from housing
development applications which are a continuing risk from the PPP arrangement
once the Road is widened and landscape damage has begun. The EIA does not assess housing
application risk or provide clear methods to overcome future development
application problems opened up by the SLT
PPP.
44.
The new Chief Executive and his team will review Hong Kong’s Conservation
Policy to comply with our new obligations under the Convention on Biological
Diversity.
Let us get it right this time. A Biodiversity
Action Plan needs to be formulated with public participation. Do not prejudice the future improved policy
by a wrong decision on our Top Priority Country Park Enclave. Do not set a precedent for destruction before
the policy is reformed. Reject this defective and damaging and excessive SLT PPP.
45.
Summarizing the points made, the SLT PPP
and EIA is contrary to several
Government policies on Planning, Country Parks, Land allocation and sale, the
CBD, the TM, and even the PPP. It fails
to follow existing case law. It cannot
be a basis for making valid decisions or drafting legal conditions for the
conservation, protection and development of Sha Lo Tung.
46.
A better Proposal exists. It
is now the duty of EPD and ACE to do its duty in protecting the countryside and
reject the EIA as not conforming to the TM and the PPP. The Country Park
experience will be irreversibly damaged by this PPP
implemented by this EIA. Sha Lo Tung is
too valuable. Hong
Kong now has international responsibilities to follow. The public interest in ecology, recreation,
landscape and rural heritage will suffer substantially unless EPD and ACE carry
out their duties and reject this non conforming EIA.
47.
This letter is to be read
together with submissions made by others such as Mr Ruy Barretto SC
and Mr Michael Kilburn so that material is not duplicated.
Figure
1 Location of Project Site relative to
the Sha Lo Tung Priority Site for nature conservation, and the access road
Figure 2 The
2011 Project layout diagram, showing:
-
2011 and 2012
Project site boundaries
-
intrusion into
Priority Site
-
ecologically sensitive
area
Figure 3 Schematic
diagram overlaid on a photograph of the Project
Site, to illustrate visual and noise impact as well
as nuisance
which hikers would have to suffer
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