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(原文發表於2012年6月21日)
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 streamcourses, 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 watercourses should be strictly controlled.” At 8.3 after referring to the streamcourses and woodland habitats for dragonflies, fishes and amphibians it 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 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.
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