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Cheung Yuen Ni v Chief Executive In Council

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date17 May 2019
Neutral Citation[2019] HKCFI 1290
Year2019
Judgement NumberHCAL177/2015
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL177/2015 CHEUNG YUEN NI v. CHIEF EXECUTIVE IN COUNCIL

HCAL 177/2015

[2019] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 177 OF 2015

_______________

BETWEEN
CHEUNG YUEN NI Applicant
and
CHIEF EXECUTIVE IN COUNCIL Respondent

_______________

Before: Hon Au J in Court
Date of Hearing: 30 November 2017
Date of Judgment: 17 May 2019

____________________

J U D G M E N T

____________________

A. INTRODUCTION

1. This is the applicant’s judicial review seeking to challenge the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 2 June 2015. The Decision was made pursuant to section 11 of the Road (Works, use and Compensation) Ordinance (Cap 370) (“the RWUCO”), authorising a project (“the Project”) relating to the widening works of Castle Peak Road – Castle Peak Section.

2. The Project was initiated by the Transport Department (“the TD”), implemented by the Highways Department (“the HyD”) and overseen by the Transport and Housing Bureau (“the THB”). The objective of the Project is to relieve the traffic congestion problem and cope with the growth of traffic demand in Tuen Mun East. The Project principally involves the widening of a section (“the Section”) of Castle Peak Road – Castle Peak Bay of about 1.9 km between Hoi Wing Road and Castle Peak Road – So Kwun Wut (near Hong Kong Gold Coast Phase I) from a single two‑lane carriageway to a dual two‑lane carriageway.

3. The applicant lives in Tuen Mun South and says she is very likely to be affected by the air and noise pollution of the Project. She challenges the Decision as unlawful on the bases that the CEIC failed to properly discharge its Tameside duty when making the Decision, it is tainted by procedural unfairness during the Project’s consultation process, and the CEIC was wrong in not treating the Project as a Designated Projected as defined under the Environmental Impact Assessment Ordinance (Cap 499) (“the EIAO”).

4. To better understand these challenges, it is necessary to set out the relevant statutory framework and background first.

B. THE RELEVANT STATUTORY FRAMEWORK

5. The RWUCO is enacted to provide for, among others, the publication of proposals as to works in relation to roads, objections to the proposals, authority to carry out the works. Relevant for the present purposes, it provides as follows:

“5. Major works: The plan and the scheme

Where the Secretary proposes to execute works, other than under section 4, he shall cause to be prepared—

(a) a plan delineating the works area, being that area within which land may be resumed, easements or other rights in, under or over land may be created or rights affected for the purposes of or incidental to the works or the use; and

(b) a scheme, annexed to the plan, in which he shall—

(i) describe the general nature of the works which he proposes to carry out and the use to which he intends the road will be put;

(ii) describe the land which he proposes may be resumed under section 13;

(iii) describe the land in, under or over which he proposes there may be created an easement or other permanent or temporary right under section 15 and indicate the nature of that easement or right;

(iv) describe any road, Government foreshore or sea-bed in respect of which he proposes the Governor may exercise his powers under section 17 and describe the manner in which the road, foreshore or sea-bed will be affected;

(v) describe any land or building in respect of which he proposes he may exercise the powers under section 19 and describe the general nature of any operations which may be carried out;

(vi) describe the nature of any apparatus in respect of which he proposes he may exercise the powers under section 20;

(vii) describe the land or building in respect of which he proposes he may exercise the powers under section 21; and

(viii) describe any land or building works in respect of which he proposes the Building Authority may exercise its powers under section 22.

…

8. Deposit and publication

(1) A copy of the plan and scheme prepared for the purposes of section 5 or 7, signed by the Secretary, shall be deposited in the Land Registry and shall be available for inspection by the public free of charge at such offices of the Government as the Secretary may direct, during the hours when those offices are normally open to the public.

(2) The Secretary shall within 21 days of the deposit of a copy of a plan and scheme in the Land Registry or of any amendment to such copy or the deposit of a substitute plan and scheme cause a notice of such deposit or amendment to be published containing—

(a) a description of the general nature of the works or of the nature and extent of the amendment to the works; and

(b) particulars of the places and times at which a copy of the plan and scheme, or details of the amendment or a copy of the substitute plan and scheme may be inspected by the public in conformity with subsection (1).

(3) The notice mentioned in subsection (2) shall be published—

(a) in 2 issues of the Gazette in both the Chinese and English languages;

(b) in 2 issues of a Chinese language newspaper;

(c) in 2 issues of an English language newspaper; and

(d) by affixing copies in the Chinese and English languages in such prominent positions within the works area as may be appropriate for the purpose drawing the notice to the attention of the public.

(4) The Secretary shall, by notice in writing, advise the District Board of the District in which the works are to be situated of the deposit of the plan and scheme under subsection (1) and, at the same time, supply that District Board with a copy of the plan and scheme.

(5) A copy of the plan and scheme shall be supplied to any person on application and payment of the reasonable cost of producing that copy.

…

10. Objections

(1) Any person may, by notice in writing delivered to the Secretary not later than 60 days after the first publication of the notice mentioned in section 8(2), object to the works or the use or both and may, where relevant, object to the exercise of the power of the Secretary under section 42(2).

…

11. Procedure after publication of plan and scheme

(1) When the time for the lodging of objections has expired and where no objections have been lodged under section 10, the Secretary may execute the works; and the works and the use shall be authorized under this Ordinance.

(1A) Subject to subsection (1), the Secretary shall not later than—

(a) subject to paragraphs (b) and (c), 9 months after the expiration of the period for lodging objections under section 10(1);

(b) subject to paragraph (c), where there is any amendment to the plan or scheme under section 7, 3 months after the expiration of the period for lodging objections under section 10(1) in respect of any such amendment or, where there is more than one amendment, the last of any such amendment;

(c) such further period of not more than 6 months after the expiration of the period referred to in paragraph (a) or (b) (as the case may be) as the Chief Executive may, upon the application of the Secretary, allow having regard to the circumstances of the case,

submit to the Chief Executive in Council for consideration the plan and scheme and any objections lodged under section 10(1).

(1B) The Chief Executive in Council shall consider the plan and scheme submitted and any objections lodged under section 10(1).

(2) The Chief Executive in Council, after considering the plan and scheme submitted and any objections lodged under section 10(1), may—

(a) decline to authorize the works and the use; or

(b) authorize the works and the use, with or without modification and subject to such conditions, as to the amelioration or avoidance of the effects of the works and the use or otherwise, as the Chief Executive in Council thinks fit.

(3) Before exercising the power under subsection (2), the Governor in Council may refer the plan, the scheme and the objections to the Town Planning Board appointed under the Town Planning Ordinance (Cap. 131) and—

(a) the Board shall, whether or not the works are shown on any draft plan under that Ordinance, exhibit and advertise the plan and scheme under section 5 of that Ordinance as if it were a draft plan, and the provisions of that Ordinance shall apply accordingly; and

(b) without prejudice to the generality of paragraph (a), the objections lodged under section 10 shall be regarded as representations made to the Board in respect of the plan and scheme under section 6 of that Ordinance.

(c) …

(4) The Governor in Council may reconsider any plan and scheme and—

(a) authorize the works and the use which the Governor in Council has previously declined to authorize;

(b) remove or vary any modifications or conditions previously imposed.

(5) The Governor in Council may, after the expiry of at least 28 days notice served on any person affected, amend any plan and scheme already considered and authorize the works and use in accordance with that amended plan and scheme.

(6) Where any objection has been lodged under section 10, the Secretary may execute the works only to the extent authorized, and subject to any subsisting modifications or conditions imposed, by the Governor in Council.

…”

6. Hence, in summary, under the RWUCO, if the Secretary for Transport and Housing (“the Secretary”) proposes to carry out any major works:

(1) He must first cause a plan and scheme relating to the proposed works to be prepared (section 5).

(2) He must deposit the plan and scheme in the Land Registry for public inspection, and publish a notice to the public (in the Gazette and newspapers) describing the nature of the...

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