Convictions under environmental legislation: October - December 2004

The EPD’s summary of conviction recorded and fines imposed during the period October to December 2004 is as follows:

January 2005

20 pollution convictions in January 2005 Printed Matter

Twenty convictions were recorded last month (January) for breaches of anti-pollution legislation enforced by the Environmental Protection Department.

Fifteen of the convictions were under the Waste Disposal Ordinance, two under the Air Pollution Control Ordinance, two under the Noise Control Ordinance and one under the Water Pollution Control Ordinance.

The heaviest fine in January was $20,000, assessed against a company that used powered mechanical equipment otherwise than in accordance with permit conditions.

February 2005 Nine convictions were recorded last month (February) for breaches of anti-pollution legislation enforced by the Environmental Protection Department.

Eight of the convictions were under the Air Pollution Control Ordinance and one under the Waste Disposal Ordinance.

The heaviest fine in February was $6,500, assessed against a company that failed to comply with an air pollution abatement notice.

March 2005 31 convictions were recorded last month (March) for breaches of anti-pollution legislation enforced by the Environmental Protection Department.

Twelve of the convictions were under the Waste Disposal Ordinance, 11 under the Air Pollution Control Ordinance, five under the Noise Control Ordinance and three under the Water Pollution Control Ordinance.

The heaviest fine in March was $25,000, assessed against a company that contravened the provisions of a licence.

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PAGE 12 An Association of Asian Commercial Law Firms FRED KAN & CO. Solicitors & Notaries URBAN PLANNING AND ENVIRONMENTAL LAW QUQUARTERLYARTERLY (Published since May 1992) !"#$%&'()

Beginning with this edition of the Quarterly, the West Kowloon Cultural District project replaces Hong Kong Disneyland as the subject of our mega-development column. The main article in this edition reviews the evolution of the WKCD project to date, and its key desired planning outcomes. In our next edition, we shall reflect on some of the main criticisms of the project. The Editors

CONTENTS WEST KOWLOON Chief Secretary for Administration (Chairman) CULTURAL DISTRICT: Secretary for Housing, Planning and Lands HONG KONG’S (Deputy Chairman)

FEATURE: Page PROPOSED ICON FOR Secretary for the Environment, Transport and CULTURE AND LEISURE Works Prior to April 2001, the government decided Secretary for Financial Services and the WEST KOWLOON CULTURAL to allocate a choice site on the northern shore Treasury DISTRICT: HONG KONG’S PROPOSED of Victoria Harbour for the creation of Secretary for Home Affairs ICON FOR CULTURE AND LEISURE .... 1 additional art, museum, cultural and recreational facilities in a concentrated cultural Secretary for Justice or her representative hub. This was the birth of the West Kowloon LEGISLATION DIGEST ...... 3 Cultural District (WKCD) mega-project, Permanent Secretary for Planning and Lands which is a huge engineering, logistical and TOWN PLANNING ...... 4 Commissioner for Tourism financial undertaking in anybody’s language. WEST KOWLOON CULTURAL Consequently, construction of the WKCD is Director of Architectural Services not expected to be finished until 31 December DISTRICT...... 5 2012. Director of Lands HONG KONG BRIEFING ...... 6 A large site of 40 hectares has been allocated Director of Leisure and Cultural Services for the development. The site is part of the ADVISORY COUNCIL ON THE Director of Planning West Kowloon Reclamation Area and lies at ENVIRONMENT(ACE) ...... 7 its southern tip, adjacent to the Western Habour Director of Territory Development REGIONAL & INTERNATIONAL ...... 8 entrance. The site is, of course, within what was once part of Victoria Harbour. Design competition PROSECUTION STATISTICS...... 12 The Housing, Planning and Lands Bureau was In April 2001, the government invited, in an appointed the lead government agency to open competition, the submission of oversee the development. It reports on conceptual plans to develop the site as an progress of the project to both Legco and the integrated arts, cultural and entertainment government’s Steering Committee for district. The competition was open to Development of the WKCD, which comprises: designers world-wide. The winning design

APRIL 2005 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY entry was to form the basis for the master  the well argued case put forward by Area and vehicular access/ingress and design and plan for WKCD in the actual Foster and Partners egress points directly abutting or linking development phase. to the Development Area; Invitation for proposals More than 160 entries were submitted. In (l) Drains, sewers, water mains and other February 2002 the design submitted by the In 2003 the government began the next stage utilities and connections; and internationally famous architectural firm, of creating the WKCD, which was to invite (m)Engineering works including possible Foster and Partners, was declared the winner. proposals (IFP) from developers to construct realignment of existing seawall, decking Four other designs received honourable and then manage (for 50 years) the WKCD. over tunnel portal of Western Harbour mentions. However, the Foster design Development and design parameters for the Tunnel, building over existing ventilation became the main, if not sole, basis of the IFP were substantially based on the Foster buildings of MTRCL and WHTCL, design and development criteria to apply to design. Thus, the WKCD will be essentially possible interfacing works with the the WKCD. a Foster and Partners designed project. construction of the Kowloon Southern At the time, the government described the The government has proposed granting a 50 Link of KCRC, necessary modification major components of the Foster design as year lease of the site to the successful or reprovisioning of salt water pumping including: “a cultural headland with an proponent, so the developer will operate the station of Water Supplies Department, assembly of performance venues and site, apart from utilities and other existing sewerage and drainage system, museums at the western end of the site, a components handed over to the government including the box culvert, seawater central retail and entertainment spine with a and privately owned parts of the project, for cooling systems, emergency vehicular collection of shops, restaurants and this period. Significantly the developer will access and other infrastructure and utility entertainment facilities, a commercial be permitted to develop and sell commercial provisions. gateway with tower blocks for office, hotel and residential components of the project. In and other commercial uses at the eastern end return, the developer will be required to plan, Mandatory design requirements for and provision of open space comprising a design, finance, construct and operate the WKCD podium park, landscaped terraces and a project. waterfront promenade.” In the IFP, the government mandated a In general terms, the IFP described the core number of design requirements. These In the light of the subsequent public agitation facilities of the WKCD as: include: caused by the Foster design, it is worth recording the competition jury’s published (a) The Canopy; (a) the provision of core arts and cultural reasons for choosing it ahead of the 160 plus facilities as follows:- (b) Core Arts and Cultural Facilities; other entries. Briefly, these were:  a theatre complex comprising three (c) Other Arts and Cultural Facilities;  singularity of image, offering coherent theatres with seating capacities of at visual authority and a [built] (d) Retail and entertainment facilities; least 2,000,800 and 400 seats, development which is progressive, well respectively suited for 21st century Hong Kong, and (e) Commercial and office developments;  likely to be an icon a performance venue with a seating (f) Residential and hotel developments; capacity of at least 10,000 seats  horizontality of the scheme across the (g) GIC Facilities including the  site, which does not complete with the a museum cluster comprising four reprovisioning of the Tsim Sha Tsui Fire tall buildings behind museums of differing themes with Station Complex (some of the existing total net operating floor areas of at  a multiplicity of public - space facilities may need to be reprovisioned least 75,000 square metres opportunities and scales outside the Development Area);  an art exhibition center with net  a substantial green space (h) Open space and landscaping works; operating floor area of at lease 10, 000 square metres  logical and imaginative deployment of (i) Automated People Mover System (within programmatic elements, drawing people the Development Area and an optional  a water amphitheatre through the commercial and extension outside the Development  entertainment facilities to the arts and Area); at least four piazza areas cultural centre (j) Other transport infrastructure facilities (b) the provision of the canopy proposed in  skilful integration with surrounding including the Pier within the the Foster design, covering at least 55% neighbourhoods and complexes Development Area; of the development area; and

 the design is viable as it is technically (k) External pedestrian links (including for (c) the demolition and re-provisioning of the straight forward, and construction of the example, footbridges and subways) to Tsim Sha Tsui Fire Station Complex. canopy roof is within the scope of Hong provide linkages to adjacent Kong’s technical skills and experience developments outside the Development

PAGE 2 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY

Objectives and benefits of WKCD intensity and overall built-form of the district 2005. Contract details for submissions of would be under effective control. In addition, representations are: The government has said that the objectives the same amount of open space originally and benefits of the WKCD will be to: proposed in the previous version of the Plan www.hplb.gov.hk/wkcd; by fax: 2186 7832; via e-mail: [email protected]; or by mail  Enrich our cultural life by attracting will be provided in the development of the cultural district.” to: Planning and Lands Bureau, 9/F Murray internationally acclaimed performance Building, Garden Road, Central, Hong Kong exhibitions; The TPB has very recently refused an - “WKCD Team”.  Nurture local arts talent and create more application by concerned legislators to revise opportunities for arts groups; the rezoning to give more emphasis on the “cultural arts and entertainment” elements  Enhance international cultural exchange; of the WKCD and less on the also permitted LEGISLATION DIGEST (under the OU zoning) “commercial and  Air Pollution Control (Petrol Filling Put Hong Kong on the world arts and supporting facilities” elements. culture map; Stations) (Vapour Recovery) The TPB has adopted an unusual planning (Amendment) Regulation 2004 (L.N.  Provide state-off-the-art performance approach, whereby the project’s requirements 218 of 2004) venues and museums; will dictate the planning principles,  Offer more choices to arts patrons; objectives and mandatory requirements, Date of Gazette: 24 December 2004 which normally precede - or pre-exist -  Encourage creativity; developments. TPB’s press release included (Made under section 143 of the Air Pollution the comment: Control Ordinance Cap. 311) after  Enhance our harbour front; consultation with the Advisory Council on “Once the preferred development scheme is the Environment)  Attract overseas visitors; and agree upon, it is the intention of the Board to incorporate the development parameters 1. Commencement  Create jobs of the agreed scheme, such as the total gross This Regulation shall come into floor area (GFA), the plot ratio and maximum operation on 31 March 2005. Town Planning aspects of the WKCD building height, etc, into the Plan for public On 11 July 2003 the Town Planning Board inspection and comment. In doing so, any 2. Explanatory Note (TPB) rezoned the WKCD site to “Other subsequent changes to the stipulated Specified Uses” (‘OU’) annotated “Arts, development parameters will require the (i) The object of this Regulation is to amend Cultural, Commercial, Entertainment Uses”. approval of the Board” the Air Pollution Control (Petrol Filling After consideration of objections, the TPB Stations) (Vapour Recovery) Regulation Whether this is a sound planning approach, later reconfirmed the rezoning. In doing so, (Cap. 311 sub. leg. S) (the “principal or responsible balancing of specialist it issued a press release on 12 December 2003 Regulation”) to require the installment agencies’ responsibilities (there is also the which in part said: of new vapour recovery systems in petrol issue of the seemingly complete lack of filling stations to control the emission of “Members are of the view that as the involvement of the Environmental Protection volatile organic compound in the course planning intention is to facilitate the Department) is questionable. of dispensing petrol into the fuel tank of development of the site into an integrated arts a motor vehicle. The Regulation also and cultural district together with other Outcome of IFP introduces a few modifications to the commercial and supporting facilities, the existing provisions of the principal As we now know, proposals by three rezoning of the district to ‘OU’ annotated Regulation. consortia of developers have been short- ‘Arts, Cultural, Commercial and listed for further consideration. A fourth Entertainment Uses’ is appropriate. (ii) Section 2, among others, amends the proposal (from Swire Properties), which existing definition of “vapour recovery Given the scale, nature and development time otherwise had merit, has been rejected for system” and introduces new definitions span of the area, the OU zoning is needed to non-compliance with the mandatory of “petrol dispenser”, “Phase I vapour allow a greater degree of design flexibility requirement of the canopy, which is the recovery system” and “Phase II vapour for the proponents to come up with the best centre-piece of the Foster design. recovery system”. proposal. Such zoning has been adopted A good deal if public criticism has been before as in the case of the development of (iii) Section 3 amends section 3 of the levelled at the government for, especially, the new airport at Chek Lap Kok, the principal Regulation to provide that - adopting a single-developer approach to the industrial estates and the container terminal. project and making the canopy a mandatory (a) no person shall own a regulated The Board was satisfied that since the feature of the WKCD. This has prompted vehicle unless the vehicle is installed majority development in the district would the Committee to delay a final decision on with a Phase I vapour recovery be covered by the distinctive canopy, thereby the choice of developer, and to extend the system; limiting the building height, development period of public consultation until 30 June

PAGE 3 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY

(b) no person shall own a petrol filling new test requirements in relation to the the surrounding road network.” station unless each petrol storage tank vapour recovery system of a petrol of the station is installed with a Phase filling station. At a Board hearing in December 2004, the I vapour recovery system and each applicant made further submissions to petrol dispenser of the station is address the above concerns of the Board, and installed with a Phase II vapour presented a further amendment proposal. As recovery system. TOWN PLANNING the further proposal contained changes to the earlier proposal submitted - which was (iv)Section 5 adds a new section 4A to the Mega Hotel Application considered by the Board in July 2004 - the principal Regulation to provide that if the The developer of a proposed mega tower Board decided to solicit public views on the air pollution control authority (“the hotel project in Wan Chai has applied for applicant’s latest proposal through the Wan Authority”) considers that the vapour planning approval for amendments to the Chai District Office. Views of Legislative recovery system of a regulated vehicle proposal to develop 93-storey hotel and Council Members, or of a petrol filling station is not commercial complex in Wan Chai, which Council and the general public were functioning properly, he may require the was originally approved by the Town subsequently submitted to the Board for owner of the vehicle or station, as the case Planning Board (“the Board”) in 1994. The consideration. may be, to cause further test and latest scheme proposes to enlarge the site Although the applicant had taken examination to be carried out by a boundary by about 42% and to extend into considerable efforts to consult the local competent examiner. an open space zone, with a different design community on the application and to address and layout. The Metro Planning Committee (v) Section 6 amends section 5 of the the concerns previously raised by the Board, of the Board rejected the application in April principal Regulation to provide that - having thoroughly examined the applicant’s 2004. Therefore, the applicant sought review further submissions and all relevant planning of the decision. A review hearing was held (a) the competent examiner instead of considerations and views expressed by the on 23 July 2004. the Authority is to be responsible for Legislative Council Members, Wan Chai issuing a certificate certifying that the At the review hearing, the Board raised a District Council and the general public, the vapour recovery system of a number of concerns relating to the scale of Board rejected the application at a review regulated vehicle or of a petrol filling development, increased traffic, visual hearing held on 25 February 2005. The station complies with the specified impairment, tree felling, open space reasons for the decision are summarised as test requirements; and reduction, and sunlight and ventilation follows: - aspects. (b) the competent examiner commits an Urban development offence if he issues a certificate A spokesman for the Board said, “Falling which contains any statement or The Board recognised that the project would within an area mainly zoned “Other information which is false or contribute positively to urban renewal in Wan Specified Uses” annotated “Comprehensive misleading in a material particular. Chai. Redevelopment Area” (“OU(CRA)”) and (vi)Section 8 adds a new section 6A to the partly zoned “Open Space”, the proposed Scale of development principal Regulation to provide that the development would contribute positively to owner of a petrol filling station shall not urban renewal in Wan Chai District. It would The major concern of the Board was the dispense petrol into the fuel tank of a also help preserve Nam Koo Terrace while overall bulk of the development, which was motor vehicle or any other container if allowing public access to this historical massive and incompatible with the character the Phase II vapour recovery system with building. By including land already zoned of neighbouring buildings in Kennedy Road. for open space use within the development, which the petrol dispenser of the station Visual impairment is installed is not in operation. implementation of the open space could be fast-tracked. The Board recognised such The development would create significant (vii)Section 9 amends section 8 of the merits in the development and fully visual impact in view of the proposed principal Regulation to provide that appreciated the efforts made by the applicant building, as compared with surrounding certain provisions concerning Phase II in revitalizing this part of old Wan Chai over buildings. vapour recovery system shall not apply the past years. While the proposed in relation to all existing petrol filling development was generally in line with the Increased traffic stations until the expiry of 36 months planning intention laid down by the Board In respect to traffic, although the road immediately after the commencement of for the OU(CRA) zone, there were still issues improvement schemes proposed by the the Regulation, with the exception of any of concern on aspects such as the design of applicant could mitigate the anticipated existing petrol filling station which has the proposed development which would increase in vehicular traffic, the feasibility each of its petrol dispenser installed with result in a wall effect when viewed from and timing for implementation of the a Phase II vapour recovery system within Bowen Road. The applicant would also need schemes had not been sufficiently those 36 months. to fully demonstrate that the development demonstrated. would be sustainable in traffic terms without (viii) Section 13 amends Schedule 2 to the resulting in unacceptable traffic impact on principal Regulation to provide for the

PAGE 4 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY

Tree felling removed to create four islands of definitely save a considerable amount of development, which would help to beautify energy by reducing the need for air- The proposed development would involve Victoria Harbour. It suggests that a total of conditioning. massive tree felling which was unacceptable. 10 hectares of the runway should be removed Claimed to be more functional and Open space in four places, creating “valuable waterfront residences in a spectacular island archipelago architecturally iconic than the canopies in the Finally, the Board was concerned that some design”. The plan is part of a harbour New Milan Trade Fair in Italy and in the of the proposed covered open space within proposal. The entire proposal will cover the Shenzhen citizen’s Centre in China, which the development might not have the capacity Kai Tak site, the WKCD, Tism Sha Tsui, are both impermeable, this semi-permeable to fulfill the proper and intended function of Victoria Park and the Tamar site in canopy could produce a cooling effect within public open space. Admiralty. the whole structure and was therefore environmentally friendly. [Press Releases of Town Planning Board, 23 Swire Properties also opposes to the July 2004, 3 February 2005 and 25 February government’s proposal for a cruise terminal, House, Planning and Lands Bureau (http:// 2005] heliport, stadium and refuse transfer station news.gov.hk/en/category/ at Kai Tak, saying the plans “should be infrastructureandlogistics/041213/features/ subjected to critical public debate”. A html/041209en06001.htm), 12 December spokeswoman for Swire said that if the 2004 WEST KOWLOON runway was cut into four islands, it would CULTURAL DISTRICT improve water flow and help resolve Canopy will spoil view pollution in the area. Swire believes a cruise Despite the government’s best endeavors to West Kowloon Cultural District terminal should be built at West Kowloon market the canopy proposed for the West where the government wants to house a On 6 January 2005, the Legislative Council Kowloon Cultural District (WKCD), the cultural hub. Instead of building a giant glass issued a clear political message to the canopy does not appeal to the general public. canopy at the West Kowloon waterfront, government by passing an amended motion Visitors, after attending exhibitions of the Swire prefers a 30-hectare park covered by calling for the scrapping of the West Kowloon WKCD model, raised concerns about huge a natural canopy of trees. Cultural District’s (WKCD) single - construction and ongoing maintenance costs developer approach and the removal of the Swire Properties also proposes regenerating associated with such unique architectural giant canopy as an integral part of the project. the Hong Kong Cultural Centre at Tsim Sha project. More importantly, the harmony and During the meeting, Chief Secretary Donald Tsui. The redevelopment would have a new beauty of the harbour view, which is Tsang refused to make concessions, saying 2,200-seat theatre, as well as concert halls unquestionably the most valuable asset of that the canopy was a basic requirement of and an arts complex. The plan includes a Hong Kong, may potentially be destroyed or the proposal. However, the government museum complex, designed by renowned disrupted by the creation of a canopy. could restart the Cultural Hub’s planning architect Frank Gehry, on the Tamar site. The process if the public did not like any of the The canopy may also pose a safety concern complex would house the new Hong Kong three selected proposals. during typhoons and its construction should Museum of Modern Art. therefore carefully be reconsidered. In response to the Legco request and followed [SCMP, 6, 7 January 2005, 11 & 17 March a review of progress made in the consultation [SCMP, 23 February 2005] 2005] so far, Secretary for Housing, Planning and Lands, Michael Suen Ming Yeung, Noise controls killing West Kowloon West Kowloon canopy: functional announced at the Legislative Council’s as concert venue Subcommittee on the West Kowloon Cultural and practical District Development on 16 March 2005 that The strict noise rules may drive concert The Civil Engineering & Development the public consultation period will be promoters out of the proposed WKCD. Department Kowloon Project Manager extended for three months. Recently, the organisers of a seven-hour rock Kwan Pak-lam said, on behalf of the marathon Wild Day Out at West Kowloon government, that the canopy concept in the Swire Properties took up the government’s Heliport received 19 warnings of excessive West Kowloon Cultural District (the invitation last year for proposals on how the noise from the Environmental Protection “WKCD”) was practical and WKCD should be built. But its plan was Department. rejected because it failed to meet the environmentally friendly. government’s mandatory requirement of a The organisers of Wild Day Out said the The microclimate created by the use of canopy covering the site. It is refusing to chance of using the WKCD as a performance canopy could help reduce the temperature give up its bid, even though the government venue was slim because of the potential and minimize the unpleasant heat and high has dropped it from a shortlist of three complaints expected to be received from humidity in the outdoor spaces. Not only did contenders. It carries on with public relevant government departments. The the canopy reduce outdoor temperature, the promotion of its plan. dilemma faced by organisers was when the temperature of the sheltered area would also WKCD was used, was that while they be reduced by 4o to 7o Celsius, according to Swire Properties has proposed that parts of complied with the relevant noise control the old Kai Tak airport runway should be the microclimate principle. This would

PAGE 5 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY stipulations, the audience would on the other [SCMP, 7 February 2005] Bid to enlarge Park Island beach hand complain about the weak sound. Sun Hung Kai Real Estate Agency, a real- Governor vows to tackle air pollution It was pointed out that the problem did not estate developer, plans to quadruple the size only relate to modern music, but classical In the provincial People’s Political of a beach next to its Park Island development music as well, since those performances Consultative Conference held on 24th at under a project it claims will cater could also be very loud. The threat posed to January 2005, delegates of Hong Kong and to swimmers, even though the water there is classical music, which had always been a Macau raised air pollution problems with so polluted that the beach is often closed to major element of cultural programmes, might Guangdong governor, Huang Huahua, who the public. Additional space for a beach deter even more organisers from considering gave assurances that his government was volleyball court and a lifeguard tower, as well the WKCD as a venue. determined to combat air pollution problem as more room for sunbathers, will be in the Pearl River Delta. The issue was raised provided. Promoters urged the government to think following a study of air pollution across the twice about planning to stage outdoor Due to its location on an island at the Lantau border, which clearly indicated that the concerts in the WKCD, particularly when end of Tsing Ma Bridge, the 15,000 square matter has become more serious in recent more residential buildings were to be built metre reclamation is not governed by the years. in that area, in order to avoid the unfortunate Harbour Protection Ordinance. Seven nearby situation of the Hong Kong Stadium to being Practical steps taken by the Guangdong public beaches have been closed to swimmers repeated. province include moving small cement because of local pollution levels. Tung Wan factors and polluting power plants in the Pearl Beach is the only one currently open. [SCMP, 14 February 2004] River Delta to the mountainous interior, The developer says the project will improve promoting the use of clean energy by the beach environment to meet growing building more nuclear power plants, liquefied demand from swimmers after the closure of natural gas power plans, and harnessing wave HONG KONG BRIEFING other beaches in the vicinity. The project is power to generate electricity. Waste incinerator opponents “have described as “community work” supported by Park Island residents and Tsuen Wan the wrong target” Mr. Huang promised that efforts to overcome air pollution problem would not be district council. The developer says they will A 20-metre-high compact incinerator has compromised by the province’s strong follow all applicable government procedures been built adjacent to a production plant at determination to press on with in the improvement work and the proposal Tap Shek Kok, in Tuen Mun, with the aim of industrialisation. will be gazetted and open to public conducting a proposed waste incineration consultation. trial. About 30 tonnes of solid waste will be [SCMP, 25 January 2005] burnt each day for three days per week. The Under an initial agreement, the developer trial could last up to 16 weeks if the emission Decline in air quality cuts HK will finance the project and provide a five- year guarantee to maintain the landscape of levels are satisfactory. The purpose of the lifespan by 16 months trial is to yield useful information to test the the beach. The Leisure and Cultural Services claim of Cheung Kong Infrastructure Ltd. for According to an estimate of prominent Department will pay management and a future contract from the government to energy and environmental expert Ari Rabl, maintenance costs. A spokesman for the build and operate an integrated waste poor air quality in Hong Kong, which roughly Leisure and Cultural Services Department treatment system. has the effect of smoking 8 cigarettes a day, said the work would be scrutinised under the was shortening the life expectancy of people Town Planning Ordinance and the Foreshore Despite the company’s expectation of dioxin in Hong Kong by 16 months. and Seabed (Reclamation) Ordinance. emissions being much lower than the legal limit, residents of Lung Kwu Tan, Tuen Mun, Whilst the adverse impact of poor air quality Ho Kin-chung, of the Advisory Council on opposed the controversial trial. They are in Hong Kong was far more serious than in the Environment, said the project’s main concerned that health deterioration will be other major cities in the world, the focus purpose was to beautify the environs of the caused by the cancer-causing dioxins emitted should not only be on the shortened lifespan, developer’s housing estate. However, there during the process. Representatives of the but also on the last few years of life when was not much point in expanding the beach company said that the residents’ fears were people suffered miserably from deceases for swimming purposes, given the poor water groundless, and put the blame on the rapid linked to air pollution, Dr Rabl warned. quality. Professor Ho said the project would growth of the Pearl River Delta for general need to undergo an environmental impact Dr. Rabl also indicated that significant deteriorating air quality. Whilst assessment and would require an amendment adverse impact of air quality on the acknowledging the northerly winds do bring to the area’s zoning plan. development of children: Pollutants can polluted air from the Guangdong Province adversely affect the mental development of The beach at Ma Wan was seldom visited to Tuen Mun, representatives of Lung Kwu babies and young children but a cleaner before homebuyers began moving into Park Tan village stressed that the incinerator’s environment would improve their brain Island in 2003. It was closed four times due emissions brought by southerly or easterly development. to poor water quality last year, with 16 of winds would have far greater impact on them. the 39 tests conducted there showing poor to [SCMP, 3 January 2005]

PAGE 6 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY very poor water quality. (iii) demolition and reprovisioning of the Pui namely the Centralised Piped Supply System O Raw Water Pumping Station; for Cooling Towers (the Cooling Tower [SCMP, 28 February 2005] Scheme), the more energy-efficient District (iv) uprating of Pui O No. 2 Raw Water Cooling Scheme and Centralised Piped ADVISORY COUNCIL Pumping Station; Supply System for Condenser Cooling (the ON THE (v) laying of two sections of 2km long raw Seawater Scheme). ENVIRONMENT (ACE) water mains at Pui O; and Use of seawater (flushing water) for the Report on the 90th Environmental (vi) all other associated civil, building, Cooling Tower Scheme and District Cooling Scheme Impact Assessment Subcommittee structural, piping, mechanical and Meeting electrical works. On the viability of using seawater for the Only (i) above is classified as a designated Cooling Tower Scheme, the project EIA report on Siu Ho Wan Water project under the EIA Ordinance. proponent explained that there were Treatment Works Extension constraints in the supply of adequate seawater Members’ views and the conclusion of the in Hong Kong. It would be necessary to make capital investment in improving and (ACE Paper 10/2004) (by EIA Subcommittee extending the pipeline network of the Subcommittee Secretariat, December Having regard to the findings and the flushing water supply system. 2004) recommendations of the EIA report, Comparatively, there would be adequate members of the Subcommittee (“Members”) supply of fresh water. In addition, the At its 90th meeting, the Environmental agreed that the EIA report could be endorsed Cooling Tower Scheme would emit moist air Impact Assessment (“EIA”) Subcommittee without condition. from the system. The high corrosive power considered the strategic environmental of salty moist air would adversely affect assessment report on Territory-wide Strategic environmental assessment structures and buildings in the vicinity, Implementation Study for Water-cooled Air particularly metal fixtures such as windows Conditioning Systems in Hong Kong. of Territory-wide Implementation and doors. Separately, the Subcommittee also Study for Water-cooled Air- considered the EIA report on Siu Ho Wan Conditioning Systems in Hong Kong As regards the use of seawater for the District Water Treatment Works (WTW) Extension. Cooling Scheme, the project proponent team explained that most District Cooling Systems Need for the project (ACE Paper 11/2004) (by EIA Subcommittee Secretariat, December in overseas countries used fresh water. In The existing Siu Ho Wan WTW and the 2004) Hong Kong, seawater would be used for associated raw water and treated water District Cooling System as far as possible; transfer and distribution systems provide Need for the study but for areas which were too far from the sea, treated water to the Hong Kong International fresh water would have to be used. Over 30% of electricity produced in Hong Airport at Chek Lap Kok and the initial Kong is estimated to be consumed by air- As regards the loss of water from the Cooling phases of North Lantau New Town and conditioning systems. An increasing Tower Scheme, the project proponent pointed Discovery Bay. The systems have a capacity population and further economic out that the loss rate would be minimal, i.e. of providing treated water of 150,000 m3/day. development will continue to encourage the about 1% of recirculating cooling water or In order to cope with the water demands of demand for air-conditioning. Water-cooled in the order of 1 m3 of water for 1 m2 of area the developments at North Lantau new town, air-conditioning systems (WACS) are more per year. the north shore and north-east areas of Lantau energy efficient than their conventional air- and Discovery Bay, the Water Supplies conditioning counterparts. Wider adoption of The impact on seawater temperature Department has proposed an extension of the WACS, especially in commercial buildings, Siu Ho Wan WTW. On the impact on seawater temperature, the is an effective measure to conserve energy project proponent team explained that despite and reduce greenhouse gas emissions Description of the project an increase of 5oC to 6oC in seawater associated with electricity consumption. temperature at the outfall of the seawater The project comprises the following- o Description of the study discharge, and a slight increase of 1 C in (i) extension of the Siu Ho Wan WTW some localized water zones, according to the within the existing WTW site boundary This Study aims to formulate plans, water quality modelling conducted during the from a capacity of 150,000 m3/day to programmes and control requirements for the Study, there would be no problem in 300,000m3 /day; phased implementation of WACS in the complying with the water quality objectives territory. It has examined in detail the for Hong Kong waters. In marine sensitive (ii) construction of Siu Ho Wan Raw Water relevant environmental, health, regulatory, areas, such as Tolo Harbour, Deep Bay and Booster Pumping Station and the institutional, financial, technical and land the vicinity of fish culture zones, seawater associated raw water mains, and E&M administration issues in WACS discharge would be avoided. The project plants site; implementation. It has also explored various proponent also pointed out that, depending technologies and three strategic WACS,

PAGE 7 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY on the quantity of seawater discharge, a dripping problems usually associated with Most of the fishing groups which have been discharge licence would be required from the conventional air-conditioning systems. consulted by the department generally Director of Environmental Protection and Furthermore, the footprints of WACS would supported a licensing system. But they had hence subject to controls imposed by the be smaller than those of conventional air- reservations about the moratorium and a Director. conditioning systems. proposal to ban trawling in Tolo Harbour and Port Shelter, coupled with the creation of two General impact of WACS on the environment Conclusion no-take zones in which all fishing would be prohibited. On the general impact of WACS on the Having regard to the findings and environment, the project proponent team recommendations of the Study, Members [SCMP, 7 March 2005] explained that the conventional air-cooled air- supported the steps to move forward conditioning systems consumed a lot of recommended by the Study. ASIA electricity, and their impact on the environment was significant. While the WACS might also have an adverse impact, it Asia’s jungles in a jam, but hopes was much less than that caused by REGIONAL & high for reforestation conventional air conditioning systems. INTERNATIONAL Reports by environmentalists reveal The feasibility of recovering and using the HONG KONG disappearing forests, waterways choked with heat produced by WACS waste, coastal destruction and a shroud of Greens urge ban on local trawling air pollution in Asia. The blame is placed on The project proponent team advised that as industrialisation and man’s thirst for natural heat was produced during the operation of Environmentalists have urged the resources and hunger for wealth. WACS, the study on the implementation of a government to ban trawler fishing in Hong pilot District Cooling Scheme in Wan Chai Kong waters in order to restore decreasing China receives the brunt of the Waterfront would not rule out the feasibility fish stocks, claiming that lawmakers are conservationists’ wrath, allegedly being of recovering the heat produced by WACS ignorant about the damage done to the marine responsible for rampant illegal logging, for other uses. environment by inshore trawling. When consuming ever-greater amounts of coal and trawling, boats drag massive nets along the oil, gobbling up seafood stocks and making Implementation of the recommendations of seabed, damaging coral, sponges and other endangered animals and plants scarcer than the Study life forms on the bottom and scooping up all they already were. fish in their path. On the implementation of the A report on Indonesia’s tropical forests recommendations of the Study, the project Markus Shaw, chairman of WWF Hong released in Jakarta recently by the Britain- proponent team advised that a consultant was Kong, said that trawling was environmental based Environmental Investigation Agency appointed in September 2004 to draw up vandalism taking place under the sea. People claimed that dozens of shiploads of illegally guidelines and other relevant requirements generally were not aware of the damage cut logs were each month being taken from on the proper use of cooling towers for air- trawling causes. the eastern province of Papua to a port north conditioning purposes. A task force had also of Shanghai to be turned into floorboards. been set up to steer the drafting of guidelines. Mr. Shaw said the average size of fish caught Senior investigator, Julian Newman, said the At present, there was no plan to introduce by trawlers is a mere 10 grams, and 12 out of trade contravened a 2002 agreement between statutory requirements for the Hong Kong’s 17 commercially important China and Indonesia to stop such practices. implementation of WACS. species were over-exploited, whilst the He claimed Indonesia’s military was remainder were fully exploited. Hong Kong profiting, as well as Hong Kong, Singapore Noise and visual impacts of the Central has the lowest biomass of fish per square and Jakarta-based middlemen, who had Seawater Scheme and District Cooling metre of reef in the world. The WWF in Hong provided forged documents. Mr. Newman Scheme Kong has presented its official submission said the 2002 agreement was good, but the With regard to the visual impact of the to Deputy Secretary for Health, Welfare and ministries in both countries responsible for Central Seawater Scheme and District Food. implementation had insufficient power. Cooling Scheme, the project proponent team The government has proposed that all The report came amid fears that Indonesia’s explained that since the major chiller plants commercial fishing boats be required to hold dwindling natural forests would be targeted of the two Schemes were put underground, licences and to abide by an annual two-month for timber to reconstruct parts of Sumatra there was no visual impact as such. In fact, moratorium to help stocks recover. devastated by the earthquake and tsunami on the replacement of conventional air- 26 December 2004. conditioning systems by the two Schemes Patsy Wong Pat-shun, senior fishing officer would greatly improve the amenities of at the Agriculture, Fisheries and Indonesia is cited by experts as one of the buildings in the territory. As for the District Conservation Department, said the world’s acute environmental worries. Cooling Scheme, buildings served by the moratorium idea, which was opposed by the Disappearing forests result in increased Scheme did not require their own chiller fishing industry, might be abandoned so as landslides, and there are concerns about plants, thereby eliminating noise and water- to win support for a fishing licensing system. water supplies and endangered species.

PAGE 8 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY

Although Indonesia officially lost two democratic institutions and strong civil Guangzhou, Zhuhai Shenzhen, Hong Kong million hectares of forest last year, some societies.Mr. Fahn commented that and Macau. environmentalists said the real figure was democracy was very good for the four million hectares. environment generally because it allowed the State Forestry Administration vice-director, building up of civil society that could then Zhao Xuemin, believes the plan will help On the other hand, inventories showed that pressure the government and business sector maintain the fragile ecological system in the forest cover had risen by one million hectares to be more concerned for environmental delta and reduce damage from natural last year in the Philippines. In China, it was issues. disasters, including floods, typhoons or reported that seven million hectares were tsunamis. The director said China would being reforested annually on the mainland. A 2001 court case in which a Thai girl was launch a nation-wide programme this year awarded damages for being injured by toxic to give better protection to its wetlands, The UN organisation’s 2003 report on the pollution at Bangkok’s port was a hopeful which ecologists said were crucial for state of forests in Asia and the Pacific showed sign. So, too, was the steadily increasing biological diversity, water quality and flood an average of one million hectares was being number of environmental pressure groups in control. lost in the region each year. A forestry official the region. with the regional office of the UN Food and The Guangdong Forestry Administration said Agriculture Organisation said the figure was Mr. Fahn, a resident in Thailand from 1990 it planned to spend 500 million yuan in the now probably 1.5 million hectares. The rate to 1999, said he drew inspiration from the next five years on wetland conservation. The is slower than it once was because in some country, even though during the past 40 money would be used to plant a 50,000- countries, especially in northeast Asia, forests years, most of it under military dictatorships, hectare mangrove forest near the mouth of are being restored and re-established. forest cover had fallen from 60 per cent of the Pearl River, and on a programme to the country to the present 15 to 20 per cent. preserve 50 hectares of nearby natural Despite China’s extensive reforestation Under democratic governments, corruption wetlands. programme, the mainland is seen as the had decreased and environmental awareness biggest challenge to conversation of the increased markedly. Guangdong has 1.84 million hectares of world’s forests. Devastating floods on the wetlands, accounting for about 11 per cent Yangtze and Yellow rivers in 1998 killed Traditionally, nature’s resources provides the of its total territory. It also boasts the largest thousands of people, and the removal of livelihood of farmers and fishermen. Mr. mangrove forest in China, covering more forests along the banks of the rivers was Fahn said Indonesia and other Asian nations than 10,000 hectares. But the wetlands are blamed. A ban on cutting down natural could use increasing wealth and relatively shrinking due to rapid industrialisation in the forests has led to timber being sought from low urbanisation to their advantage. The basis Pearl River Delta. other sources worldwide. is to give authority back to the villagers who have lost control over land they once used to Dr Lew Young, conservation manager of the The president of the Washington-based gather food or medicine, due to timber Mai Po nature reserve in Hong Kong, said environmental group Forest Trends said concessions and the like. the authorities must conduct a thorough study research showed the quality of the new forests before setting up the conservation zone. He to be poor. Countries wanted to become self- One approach is to reward people living in said wetlands were a natural buffer for the sufficient in their own timber needs in the or near forests to take care of their coastlines and could help absorb the next 15 years. However, an analysis surroundings. This will not necessarily be destructive impact of typhoons and tsunamis. conducted by Forest Trends, with the cash, and could include secure land collaboration of many Chinese institutions, ownership, and access to markets or health [SCMP, 24 February 2005] concludes that this is not going to happen. clinics. INDIA Borneo’s forests could be gone in 10 years. Another increasingly popular approach in Part of the reason for that is the demand for Asia is to employ community-based forestry Tigers disappear from reserves timber in China, and the rapidly growing management, which gives more power to palm oil industry. Forests in the Russian Far villagers to conserve their forests. Tigers disappeared for a year at Sariska Park East might be the most threatened in the in Rajasthan, one of India’s best-known world at this point because they are just on [SCMP, 28 February 2005] reserves. At other famous parks, such as the other side of the border with China and Ranthambore in Rajasthan, the sightings are there is a new need for hard currency. CHINA becoming rare. Ranthambore officials say 18 Myanmar’s forests are also threatened. tigers are missing. Wetlands plan will lessen damage The concern is high, yet some Experts fear that the species is being pushed from disasters environmentalists are optimistic that Asia’s inexorably towards extinction. Rajasthan developing countries will heed the warnings. China plans to develop a huge wetland MPs, who normally care little for US environmental journalist, James Fahn, conservation zone along the coast of the Pearl environmental matters, worry very much argued that degradation of Asia’s River Delta to help reduce the impact from about how tourism will suffer if the tigers environment would slow and then reverse as tsunami and typhoons. It will include all the disappear. They have thus demanded the countries embraced democracy and built marshlands and mangrove forests in creation of a special taskforce to investigate the problem.

PAGE 9 The bulk of India’s estimated 3,600 tigers, renewable energy. It will enable Hong Kong The last attempt by the Bush government to about half the world’s total population, are to have better access to the latest policy and override the strict non-exploitation status of to be found in nine reserves in India, technology developments relating to the Refuge was rebuffed by Democrats and including Sariska and Ranthambore. renewable energy and energy efficiency in a number of moderate Republicans in the other parts of the world. Senate. They agreed with conservationists The tiger’s usual threats, such as poaching, that the country needs to look to alternative shrinking habitat and recurring droughts, are It is believed that more energy-saving energy sources rather than endangering the causing great damage in India. Years of measures and wider use of renewable energy fragile ecosystem and wild life habitat of the drought in Rajasthan have dried up water in Hong Kong will help to reduce reliance Arctic Refuge. supplies in wildlife sanctuaries as well as on fossil fuels and to control greenhouse gas ruining crops. Conservationists want the emissions. It is estimated the Refuge holds oil reserves parks to receive water. However, the Chief of approximately 16 billion barrels. America Minister said that farmers had threatened to Edwin Lau Che-feng, assistant director of currently imports an estimated 11.8 million commit suicide if precious water was given Friends of the Earth, said he hoped the barrels of oil per day. to sanctuaries instead of to them. He partnership could help Hong Kong regulate portrayed the issue as being a conflict the market and promote renewable sources. [SCMP, 11 March 2005] between human beings and animals. However, he said it was crucial that Hong Kong shouldered its responsibility as a Tiger expert, Valmik Thapar, said that the developed economy. Rajasthan government kept giving out mining leases to contractors in areas that were Under the government’s proposal, Hong protected forests, like Sariska, in violation Kong will reach a renewable energy target of the laws. The human activity there drives of 1 per cent by 2012 and 3 per cent by 2022. the tigers away. The most serious problem is It is estimated that the city’s carbon dioxide the destruction of the tigers’ habitat and prey. emission will rise 39 per cent from the 2000 In Ranthambore, the 300 sq. km core of the level by 2010. park has been invaded by graziers and The signing came about three weeks before livestock. the Kyoto Protocol, an international Poaching is another hazard. The convention fighting global warming, came Environmental Investigation Agency lobby into force on 16 February 2005. Under the group said late last year that China’s Kyoto Protocol, at least 30 developed economic boom was fuelling the illegal trade countries will be required to cut greenhouse in tiger products. gas emissions to 1990 levels. The protocol, which the mainland has signed, will also be [SCMP, 16 February 2005] extended to Hong Kong under an agreement with the central government. HONG KONG Hong Kong will escape the reduction target imposed on developed countries as China is Hong Kong joins partnership on exempted due to its status as a developing renewable energy nation.

On 25 January 2005 Hong Kong joined an [SCMP, 25 January 2005] international network promoting the use of renewable energy. USA The Renewable Energy and Energy Efficiency Partnership was initiated by Bush renews demand for Arctic oil Britain at the Johannesburg World Summit President Bush has again urged Congress to on Sustainable Development in 2002. It aims permit oil exploration and exploitation in the to accelerate and expand the international Arctic Refuge, Alaska, citing America’s market for renewable energy and energy- heavy dependence on foreign oil as a security efficiency systems by matching donor problem. funding with projects and sharing information and experiences between Mr. Bush argues that a small corner of the partners. Other members include the United Arctic Refuge - the last true wilderness area States, Australia, Japan and the European in the USA - should be opened up for oil Commission. production, so as to lessen the dependence of America on high-priced oil imports. A government spokeswoman said joining the partnership would help Hong Kong develop PAGE 10 This Quarterly Report does not constitute legal advice given on any particular matter. Whilst all effort has been made to ensure completeness and accuracy at the time of publication, no responsibility is accepted for errors and omissions. Further information and enquiries in respect of this quarterly should be directed to Fred Kan & Co. or any of our following associate firms:

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