ENVM 8006

Environmental Impact Assessment

Term Paper
Critical Evaluation of Variation of Environmental Permit
(VEP) System in Hong Kong

Submitted by

Mohammad Aminul Quaium

MUP Year-2, University Number: 3035455395

Department of Urban Planning and Design

The University of Hong Kong

1. Background

Under the Section 13 of Environmental Impact Assessment Ordinance (EIAO), there is a

provision for Variation of Environmental Permits (VEP). According to this Section of the
Ordinance, a person responsible for a designated project which has already obtained an
environmental permit may apply for a variation of the conditions that have been incorporated
in the environmental permit. The Director shall have 30 days after receipt of an application for
notifying the applicant about the variation of environmental permit and informing him whether
submission of an environmental impact assessment report is required for the variations pursued
(EPD, n.d.a). If the Director does not reply within 30 days, it will imply that he does not require
the applicant to submit an environmental impact assessment report for the variations.

According to EIA Ordinance, there are two conditions for proposed variations of an
environmental permit being accepted by the Director without requiring submission of an
environmental impact assessment report. First, there must not be any material change to the
impact of the designated project on the environment with mitigation measures in place, and
second, the designated project must comply with the requirements specified in the Technical
Memorandum. However, in case of an environmental impact assessment report is required by
the Director, the procedures laid out in sections 5, 6, 7 and 8 of the EIA Ordinance must be
followed (EPD, n.d.b). In this regard, it is worth mentioning that material change to the impact
of designated project has been defined in Article 6.2 of Technical Memorandum as follows:

“The environmental impact of a designated project, for which an environmental permit

has been issued, is considered to be materially changed if the environmental performance
requirements set out in the EIA report for this project may be exceeded or violated, even
with the mitigation measures in place” (EPD, 1997, p13).

Before looking further into the variations of conditions in environmental permit, we can take a
brief look into the basis of imposing these conditions in an environmental permit. The
conditions provided in the environmental permit can come from mitigation measures appearing
in the project profile or the findings and conclusions of the approved EIA report; may also
reflect the conditions for approval of the environmental impact assessment report or conditions
for approval of direct application for environmental permit; the advice given by other relevant
authorities to the Director on matters within their jurisdiction; and/or the measures required to
comply with the guidelines, standards or criteria specified in the Technical Memorandum
(EPD, 1997, pp13-14). Therefore, variation of any condition in the environmental permit
should require careful consideration and judgement.

2. Analysis of VEP Application Trends and Frequencies

Since the EIA Ordinance coming into effect in 1998, 556 applications for variations to
environmental permits have been submitted between 1998 and 2018. Figure 1 shows the trend
of these applications during this period, including the numbers of applications for each year.

Source of Information: EIAO Register, EPD Website

Figure 1: Number of Applications for Variations of Environmental Permits Submitted Each
Year from 1998 to 2018

From Figure 1 we can see that there are only two applications in 1998 and six applications in
1999, which can be attributed to the fact that EIAO only came into effect in 1998 and it took
some time for different agencies to understand its procedures during the early years. However,
since its third year (2000) there had been a substantial increase in applications for VEPs. The
visual analysis of the line chart in Figure 1 reveals two distinct periods of very high number of
applications – first during 2003-2005 and second during 2012-2016. During the first period a
total of 124 VEP applications were submitted in a time span of only three years, whereas during
the second period a total of 177 VEP applications were submitted over five years. In
comparison with these periods, there has been a sharp decline in numbers of VEP applications
during the recent years (2017 and 2018).
After compiling a database of VEP applications for this paper, it is evident that these 556
applications had been submitted under a total of 187 projects. Out of these 556 applications,
509 applications (i.e. 91.5%) were approved by the Director. Only 15 applications were
rejected on the ground that submission of EIA reports were necessary for the variations sought.
The remaining 32 applications were withdrawn by the applicants.

Source of Information: EIAO Register, EPD Website

Figure 2: Percentage Distribution of Projects According to the Number of VEPs Applied

Source of Information: EIAO Register, EPD Website

Figure 3: Percentage Distribution of Projects According to the Number of VEP Applications
Approved
Figure 2 and Figure 3 show the percentage distribution of projects according to the number of
VEPs applied and the number of VEP applications approved, respectively. Apparently, there
is no significant difference among the percentage distributions between these two charts. This
is mainly due to the fact that only a very small number of applications were rejected during the
period following the EIA Ordinance coming into effect. The analysis also reveals that more
than half of the 187 projects for which VEPs were applied got more than one VEPs approved,
17% projects obtained 5 or more, and 5% projects obtained 10 or more VEP approvals.

Usually, projects of highly engineering and technically intensive nature involve higher
numbers of VEP applications, since such projects might require a number of adjustments or
modifications in design and construction method during the course of the project. Among the
project proponents, MTR Corporation Limited (including former Kowloon-Canton Railway
Corporation), Civil Engineering and Development Department, and Highways Department
have a very large number of VEP applications. Table 1 shows some of the projects with highest
number of VEP applications:

Table 1: Projects with highest number of VEP applications under EIAO

Title of the Project No. of VEP No. of VEP
Applications Applications
Approved
Hong Kong Section of Guangzhou-Shenzhen-Hong Kong 14 14
Express Rail Link
Fill Bank at Tseung Kwan O Area 137 13 13
Sheung Shui to Lok Ma Chau Spur Line 12 12
Hong Kong-Zhuhai-Macao Bridge Hong Kong Boundary 12 11
Crossing Facilities
West Rail 12 11
Source of Information: EIAO Register, EPD Website

3. Analysis of Some Cases of VEP Applications

According to EIA Ordinance and Technical Memorandum, variation of an environmental

permit (VEP) can only be applied if there is no material change in the impacts of the designated
project on the environment. In this regard, it is understood that these can include small
insignificant changes or modifications in the conditions or project details. This may include
renaming some part or component of a project, such as renaming of “emergency rescue station”
to “emergency rescue sidings” in the project ‘Hong Kong Section of Guangzhou-Shenzhen-
Hong Kong Express Rail Link’ through VEP-323/2010. However, some VEPs might be
concerned with such aspects that are much more complex, such as modification of conditions
regarding operational characteristics. For instance, for the same project mentioned above, VEP-
544/2018 applied for variation in the condition of operational characteristics of trains along the
Hong Kong section of Guangzhou-Shenzhen-Hong Kong Express Rail link. It was stated in the
earlier EP (EP-349/2009/M) that not more than a total of 280 short haul trains (maximum 241m
long) and 66 long haul trains (maximum 427m long) shall operate along the route daily. The
following operational conditions had been imposed on the hourly operational characteristics1:

Operational Periods Maximum Hourly Frequency Maximum Hourly Frequency

of Short haul Trains of Long haul Trains
Northbound Southbound Northbound Southbound
0600 to 0700 hours 6 6 - -
0700 to 2300 hours 13 12 4 3
2300 to 2400 hours 6 6 - -
Source: EPD

Although VEP-544/2018 has retained the maximum number of daily operations of both short
haul and long haul trains (i.e., not more than a total of 280 short haul and 66 long haul trains
per day), the following variations in operational characteristics have been applied for2:

Operational Periods Maximum Hourly Frequency Maximum Hourly Frequency

of Short haul Trains of Long haul Trains
Northbound Southbound Northbound Southbound
0000 to 0015 hours 1 - - -
0415 to 0500 hours 1 1 - -
0500 to 0600 hours 1 2 - -
0600 to 0700 hours 6 6 - -
0700 to 2300 hours 13 12 4 3
2300 to 2400 hours 6 6 - -
Source: EPD

It is apparent that there is extended operational period of short haul trains according to this
VEP as compared to the earlier EP. Now the question is whether such modification of
operational hours of trains, despite the fact that these are only short haul trains and low noise
tracks were proposed as mitigation measures, can be considered as a minor modification of

1
https://www.epd.gov.hk/eia/register/permit/latest/vep5422018.htm
2
https://www.epd.gov.hk/eia/register/permit/latest/vep5442018.htm
conditions. It is not easy to decide since there is no sufficient information in the amended
permit. The Director of EPD, however, approved this application of variation issuing an
amended environmental permit no. EP-349/2009/N.

Another example of confusion over material change in the impacts due to variation applied can
be demonstrated through the case of the project ‘Widening and Reconstruction of Tai Po Road
(Sha Tin Section)’. A variation was applied by Civil Engineering and Development Department
(CEDD), the proponent of this project, through VEP-468/2015 for updating some engineering
design diagrams in EP-463/20133. In the figures showing the location of the project, it is easily
discernible that some changes were brought about in the design of STRC Road and its junctions
(shown within purple circles in Figures 4(a) & 4(b)). Apparently, noise impacts for the updated
design had been taken into consideration, which is evident in accompanying noise mitigation
measure diagrams (presented here in figures 5(a) & 5(b)). However, some questions might arise
from such variation in design. First of all, are there other impacts than noise due to such
modifications in road design? And, if there are, is there any significant material change in these
impacts? The VEP application does not give any clear indication in this regard. This application
was approved by the Director through environmental permit no. EP-463/2013/A.

Source: https://www.epd.gov.hk/eia/register/permit/latest/figure/ep4632013figure1.pdf
Figure 4(a): Project location map according to EP-463/2013

Source: https://www.epd.gov.hk/eia/register/permit/latest/figure/vep4682015figure1.pdf
Figure 4(b): Modified project location map according to VEP-468/2015

3
https://www.epd.gov.hk/eia/register/permit/latest/vep4682015.htm
Source: https://www.epd.gov.hk/eia/register/permit/latest/figure/ep4632013figure2b.pdf
Figure 5(a): Noise mitigation measures according to EP-463/2013

Source: https://www.epd.gov.hk/eia/register/permit/latest/figure/vep4682015figure2b.pdf
Figure 5(b): Noise mitigation measures according to VEP-468/2015
4. Discussion

During the twenty years (1998-2018) of VEP system under EIAO in Hong Kong, a total of 556
applications were submitted by project proponents. Only 15 applications were rejected. A very
high approval rate of more than 90% points to the fact that project proponents do not have to
worry too much to see their VEP applications through approval process. For example, ‘Hong
Kong Section of Guangzhou-Shenzhen-Hong Kong Express Rail Link’ project got all of its 14
VEP applications approved. But, do all the VEP applications conform to the principle that there
must not be any material change in the impacts of a designated project due to the variation? It
is evident from the cases mentioned in the previous section that there is some gray zone in this
aspect. The consequences of VEPs sought on the overall impacts of the designated projects are
not always clearly outlined.

5. Conclusion

The purpose of having a provision for Variation of Environmental Permit (VEP) in EIA system
is to impart some flexibility to the system. Some modifications might be necessary during the
course of a project due to technical, financial or other reasons. If such modifications or
variations do not cause material changes in environmental impacts, then VEP enables project
proponents to quickly incorporate these into the project without the necessity of carrying out
an EIA all over again, which is necessarily a time-consuming process. From this point of view,
VEP is a practical feature of Hong Kong EIA system. In comparison, EIA systems in many
countries, like United Kingdom, the Netherlands, or Taiwan, do not have any such provisions
(LegCo, 2016, Appendix 2). However, what really raises the concern and doubt over the VEP
process in Hong Kong is the paucity of any transparent mechanism for assessing whether or to
what extent proposed modifications cause any material change in the impacts of the project.
The responsibility of deciding on VEP applications lies with the Director of EPD and the
decision must be given in 30 days. Also, there is no provision for public consultation or seeking
comments from ACE members in the process. In order to improve the reliability of VEP system
in Hong Kong, I would suggest formation of a committee or body of experts to assess whether
there would be any cognizable material change in the impacts due to the variation. Some of
these experts might be the same as ACE members. On the basis of the assessments of this
committee, the Director will give decision on VEP applications. This will enable more
transparent decision making process without hampering the merits of VEP system.
References

EPD (n.d.a). “EIA Ordinance: Part III Environmental Permits”. Environmental Protection
Department, The Government of the Hong Kong Special Administrative Region.
Retrieved on 12 March 2019 from: https://www.epd.gov.hk/eia/english/legis/pt3.html#10
EPD (n.d.b). “A Guide to the EIA Ordinance”. Environmental Protection Department, The
Government of the Hong Kong Special Administrative Region. Retrieved on 12 March
2019 from: https://www.epd.gov.hk/eia/english/guid/ordinance/guide7_4-8.html#7_4
EPD (1997). Technical Memorandum on Environmental Impact Assessment Process
(Environmental Impact Assessment Ordinance, Cap.499, S.16). Environmental Protection
Department, The Government of the Hong Kong Special Administrative Region.
Retrieved on 13 March 2019 from:
https://www.epd.gov.hk/eia/english/legis/memorandum/TM.pdf
LegCo (2016). “Review of the Environmental Impact Assessment System in Hong Kong” (LC
Paper No. CB(1)537/15-16(01). Panel on Environmental Affairs, Legislative Council, The
Government of the Hong Kong Special Administrative Region. Retrieved on 15 March
2019 from: https://www.legco.gov.hk/yr15-16/english/panels/ea/papers/eacb1-537-1-
e.pdf