Assessing Hong Kong's environmental legal system for rural terrestrial habitats in the New Territories

Abstract

When touring around the countryside in Hong Kong, it is easy to see that unauthorized developments and activities, such as village houses, vehicular access, landfilling, site formation, tree felling, occupation of government land, and scrapped car yards on farmlands, occur frequently in rural areas. Some of these unauthorized developments are even happening within environmentally protected zones, such as in Green Belts (GBs) and Country Parks (CPs). There is increasing public concern about these unauthorized development activities, which are causing serious environmental damage in rural areas, particularly to ecologically sensitive sites and private lands inside or in the vicinity of country parks. Because of this concern, the principal research of this thesis is focused on how effective the environmental protection laws of Hong Kong are. The laws are considered effective only if they achieve or are likely to achieve preset objectives. For environmental legal systems to be effective; valuable environmental sites must be protected and sustainable development must be achieved. To evaluate the effectiveness of the current environmental laws of Hong Kong and its environmental governance system, the methodology used in this research is based on case studies. Comparative analysis will be used to compare the international environmental laws and principles of other common law jurisdictions which have comprehensive and effective environmental legal systems in place. The key research question in this thesis focuses on whether the current protection laws of Hong Kong and its existing environmental legal system are adequate to protect our country parks, wetlands, agricultural lands, private rural land, watercourses, and woodlands and whether the current laws allow sustainable economic development for the future of Hong Kong society. The principal methodology adopted in this research is to use case studies as a research tool to study the local environment. Then, comparative analysis will be made between Hong Kong's legal system and the legal systems of other countries in which the international principles and rules of environmental law have been adopted. Only cases with important environmental bearing were selected and used for the investigation. Particular emphasis in the case studies is given to the following major variables to determine the effectiveness of the environmental legal system: cultural background; the indigenous people's rights concerning land and natural resources; economic activities; different levels of governance; the effectiveness of the enforcement authorities; and reporting and responding mechanisms. In particular, this thesis intends to contribute to the current public policy on responding effectively to environmental violations, using the study of rural protection as a yardstick to show what can be done to improve Hong Kong's environmental legal system to better protect our beloved countryside for future generations. A few findings from the research show that Hong Kong is unique from the rest of the world in terms of environmental protection of rural terrestrial habitats. These findings include the following: (1) the legacy of the Small House Policy (SHP); (2) the exclusion of private lands of high ecological value from the protection of the Country Parks Ordinance (CPO); (3) the hoarding of farmlands by property developers for speculation; (4) the ad hoc planning mechanisms of Outline Zoning Plans (OZPs) and Development Permission Area Plans (DPAPs); (5) the deficiencies of the Environmental Impact Assessment (EIA); (6) the public's limited access to environmental justice; (7) courts that, in general, do not have the judiciary expertise to deal with environmental violation cases; (8) the fundamental errors in introducing OU(RU) zoning; (9) no ordinances for tree protection on private lands; and (10) the Basic Law, which does not empower Hong Kong to participate in international treaties on environmental protection with foreign states. Finally, the findings suggest that the government lacks the political will to formulate a long-term Green Policy for the conservation of Hong Kong's rural environment. One general finding is that it may be possible to control publicly owned land usage by legislation against degradation, such as the CPO and the Town Planning Ordinance (TPO). However, because there is a tremendous monetary benefit in owning private land, landowners, given the choice, tend to seek short-term profits rather than risk waiting for uncertain future benefits. The following are fifteen recommendations for improving the environmental legal system in Hong Kong: (1) strengthen environmental governance at multiple levels; (2) encourage public participation and provide access to environmental justice in line with the principles of the Aarhus Convention; (3) formulate a comprehensive planning policy for rural areas; (4) establish a separate and independent Environment and Land Court (ELC) to adjudicate matters solely on environmental violations and misuse of land; (5) reform the Town Planning Board (TPB) by replacing the non-official members with full-time staff and independent administrative support; (6) close the TPO loophole by amending Cap. 131 to give the Environmental Planning Department (EPD) statutory enforcement power over OZPs which have not been covered by DPAPs; (7) ameliorate Planning Policy 2030 by introducing clear and comprehensive conservation objectives; (8) protect private lands of high ecological value within or in the vicinity of country parks; (9) rectify the deficiencies of dispersed authority and decentralized enforcement; (10) rectify the deficiencies in local conservation legislation; (11) apply the 1992 Convention on Biodiversity to Hong Kong and legislate it into local laws for enforcement; (12) rectify the deficiencies in the Basic Law which lead to a lack of checks and balances for the public; (13) amend or repeal the Small House Policy; (14) correct the fundamental errors in rezoning agricultural land to Other Specified Uses annotated Rural Use (OU(RU)) zone; and (15) introduce a Tree Preservation Order clause in the CPO and the TPO.

Date of Award	2 Oct 2013
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	M Joseph Anthony COORAY (Supervisor)