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Hong Kong activists fail in legal bid to challenge decision on construction of third airport runway

Judge rejects their accusations that environmental watchdog did not take into consideration airspace issues, habitat destruction

Hong Kong’s High Court has struck out a bid by a Lantau resident and a conservationist to challenge the decision to allow the construction of a third airport runway, with a judge rejecting accusations that the environmental watchdog had ignored airspace issues and habitat destruction.

Mr Justice Anderson Chow Ka-ming stated in a judgment handed down on Thursday that the grounds of the applicants’ judicial review were not well-founded or valid.

The Airport Authority, a party to the case, said it welcomed the ruling and would reduce the environmental impact of the project.

In March 2012, the government decided to proceed in principlewith plans to expand the Hong Kong International Airport by building a third runway. The director of environmental protection in November 2014 then approved an environmental impact assessment report and granted a permit for the controversial project, which is expected to cost HK$141.5 billion.

But Lantau resident Ho Loy and conservationist Yu Hin-pik applied for a judicial review over the department’s decision, questioning whether it had taken into account the full impact of the runway.

In his judgment, Chow wrote that when it comes to deciding whether to grant or deny an environmental permit, it was not part of the environmental watchdog’s functions to vet the wisdom of the Airport Authority’s proposal to expand the airport.

“[Its] function is to consider the assessment and acceptability of the environmental impact which may be caused by the project,” the judge stated.

Ho also questioned the assessment of noise and air impact due to the use of airspace in the Pearl River Delta area in relation to the projected air traffic movements in or out of Hong Kong.

But the judge said it was clear the airspace issue was not relevant to the project’s noise impact assessment or the protection of the environment – which were the watchdog’s areas of concern when deciding on granting an environmental permit.

Ho claimed that she had not intended to challenge the decision to build the third runway, and that the present review was related to the environmental impact assessment exercise.

She argued that the watchdog’s report failed to take into account the actual ecological impact on the Chinese white dolphin and also failed to provide compensation measures for the progressive permanent destruction of habitat during the construction phase.

Chow, however, found it “incorrect” to suggest that the watchdog had failed to consider compensation measures, adding that findings in the department’s report concerning the habitat loss should be read in their proper contexts.

The director’s approval of the assessment report depended on criteria including whether it complied with the requirements of a technical memorandum.

“I am unable to see in what respect it may be said that there are omissions or deficiencies in the [report] which may affect the results and conclusions of the assessment,’’ Chow wrote in his judgment.

The court’s primary concern was with the procedure to be followed in the environmental impact assessment process, not the merits, unless it was found to be unreasonable, the judge added.

Chow said compliance with the express obligations imposed by the Environmental Impact Assessment Ordinance should be regarded as a sufficient discharge of the watchdog’s duties in the environmental impact assessment process.

“[The] court should not readily impose additional obligations on the director over and above what is expressly required by the ordinance,” Chow stated in the judgment.

He asserted that the viability and sustainability of the project was related to the airport authority’s wisdom in pursuing it. This made it a matter of public policy, and not a matter for determination in the present judicial review, he added.

Ho and Yu were ordered to foot the legal bills of the director of environmental protection and the airport authority on Thursday, but Ho said she was still studying the judgment and would make public her next step.
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