PLC Paper No. CB(1)554
(These minutes have been seen
by the Administration)
Ref : CB1/BC/7/96/2
Bills Committee on Railways Bill
Minutes of meeting held
on Wednesday, 19 March 1997, at 8:30 am
in Conference Room A of the Legislative Council Building
Members present :
Hon CHAN Kam-lam (Chairman)
Hon Edward S T HO, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Albert CHAN Wai-yip
Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
Hon Zachary WONG Wai-yin
Hon Albert HO Chun-yan
Hon NGAN Kam-chuen
Hon CHAN Wing-chan
Dr Hon LAW Cheung-kwok
Hon LEE Kai-ming
Members absent :
Hon LAU Wong-fat, OBE, JP
Public officers attending :
- Mr Paul LEUNG
- Deputy Secretary for Transport
- Mrs Agnes Allcock
- Principal Assistant Secretary for Transport (Transport Infrastructure) 7
- Ms Linda SO
- Principal Assistant Secretary for Transport (Transport Infrastructure) 4
- Mr Francis NG
- Principal Assistant Secretary for Planning, Environment and Lands (Special Duties)
- Mr C K MAK
- Government Engineer/Railway Development
- Mr Frank Phillips
- Chief Estate Surveyor/Acquisition
- Miss Sherman CHAN
- Acting Senior Assistant Law Draftsman
- Mrs Hedy CHU
- Assistant Secretary for Transport
Clerk in attendance:
- Miss Odelia LEUNG
- Chief Assistant Secretary (1)1
Staff in attendance :
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mr Matthew LOO
- Senior Assistant Secretary (1)4 (Atg)
I Matters arising from previous meetings
(Paper No. CB(1)1033/96-97(03) - concerns raised by members at the meeting on 28 February 1997
Paper No. CB(1)1033/96-97(04) - response of the Administration to Paper No. CB(1)1033/96-97(03)
Paper No. CB(1)800/96-97(03) - a summary table prepared by the Assistant Legal Adviser
Paper No. CB(1)1089/96-97(01) - concerns raised by members at the meeting on 13 March 1997
Paper No. CB(1)1089/96-97(02) - response of the Administration to Paper No. CB(1)1089/96-97(01))
The Deputy Secretary for Transport (DS for T) advised that the Administration agreed in principle to impose a statutory time limit for handling objections and the initial thinking was within a year. A member enquired if this period could be shortened to six months. In response, DS for T advised that the Administration had yet to decide on the exact time limit, but any period less than nine months as suggested in the Town Planning White Bill would be impractical. The Administration also needed to take into account manpower resources. Members in general welcomed the Administrations response and opined that they would favourably consider applications for additional resources to expedite resolution of objections. The Administration would inform members of the proposed statutory time limit as soon as practicable.
Regarding the time limit of one year for lodging claims for compensation, Hon Albert HO Chun-yan pointed out that no such limit was specified in the Crown Lands Resumption Ordinance (CLRO), Cap. 124. Although a time limit was stipulated in a resumption notice issued under CLRO, a claimants right to compensation would not be barred on the ground of late application. This was different from the statutory requirement in the Bill to serve a claim within one year; any claims out of time would not be accepted unless with the consent of the Secretary for Transport (S for T) or with an extension of time by the Lands Tribunal. The Assistant Legal Adviser 3 (ALA3) advised that under CLRO, a person could either submit claims for compensation within the time stipulated in the notice, or if no such notice had been served, initiate claims within one year from the date on which the land was reverted to the Administration. Applications for extension of the latter period would be considered by the Governor. DS for T clarified that the Bill was different from CLRO in that clause 33 empowered S for T to accept claims out of time. The Acting Senior Assistant Law Draftsman (SALD (Atg)) supplemented that the provisions in CLRO were more stringent as extension of time could only be granted by the Governor. Some members opined that if a person did not serve a claim within the statutory time limit deliberately, he should be barred from doing so. A member said that from the perspective of a railway company, it was derisable to set a time limit for lodging claims without which the liability of the company could not be ascertained as far as compensation was concerned. Mr HO considered the proposed one year too short and that it was inadvisable to leave it to the Lands Tribunal or S for T to decide on an extension. He was of the view that even if a time limit for lodging claims was considered necessary, the period should at least be three years.
As regards members enquiry on professional charges, the Assistant Secretary for Transport affirmed that since the basis on which compensation for resumption of land was assessed was the same as CLRO, these payments could be reimbursed to claimants affected by railway projects in accordance with section 6(2)(a) of CLRO. Where necessary, Government might make advance payments on a non-statutory basis to claimants pending determination by the Lands Tribunal.
Some members noted in clause 33(2) that the Lands Tribunal might only extend the period for making claims if it considered that the Government was not materially prejudiced in the conduct of its case or otherwise by the delay. They sought clarification on the meaning of "materially prejudiced". SALD (Atg) responded that the term meant that the delay in serving the claim would seriously and adversely affect the ability of the Government to conduct its case. DS for T added that this clause was modelled on the Roads (Works, Use and Compensation) Ordinance (Roads Ordinance), Cap. 370, and he undertook to clarify the meaning of the term in writing.
On the procedures for handling unresolved objections, DS for T advised that the Administration would submit all relevant papers to the Governor in Council for consideration including the minutes of meetings held with objectors and any supplementary information from the objectors. Hon Edward S T HO said that based on his personal experience, working groups would be formed under the Executive Council to study these cases. Upon a members request, ALA3 undertook to provide a chart illustrating the procedures in handling objections by the Town Planning Board.
II Clause-by-clause examination of the Bill
Members continued examining the Bill clause by clause.
Clause 45 Exemption, repeal and transitional provisions
The Principal Assistant Secretary for Transport (Transport Infrastructure)7 advised that the Quarry Bay Congestion Relief Works which were urgently needed to relieve congestion and improve safety at the Quarry Bay Station would be implemented under the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (MTRC Ordinance), Cap. 276 and exempted from the application of the Bill. As regards members concerns over excessive power on the part of the Governor in Council to exempt by order a project from the application of the Bill, SALD (Atg) said that such an order was a piece of subsidiary legislation and would be subject to negative vetting by the Legislative Council. Regulations made by the Govenor-in-Council under clause 45(3) were also subsidiary legislation. Members were concerned about the way in which a railway project exempted from the operation of the Bill would proceed after the repeal of the MTRC Ordinance. They suggested that subclause (1) be re-drafted to make it clear that any exemption order would be subsidiary legislation and that the railway projects to be exempted be specified in the Schedule. The Administration agreed to consider.
Clause 46 Works, etc. authorized under Roads (Works, Use and Compensation) Ordinance and scheme authorized under Railways Ordinance
Members had no comment on this clause.
Schedule - Part I
In response to a member, the Principal Assistant Secretary for Transport (Transport Infrastructure)4 (PAS for T(TI)4) advised that the Schedule to the Bill was modelled on the Roads Ordinance with textual changes.
Section 1 General effect of this Part
Section 2 Definitions applicable to Part II
Section 3 Fluctuations in value of land
Members had no comment on these sections.
Section 4 Disturbance payments
SALD (Atg) clarified that a person was entitled to disturbance payments if he had a compensatable interest in the land as stated in column 1 of various items in Part II of the Schedule and "compensatable interest" was defined in clause 2 of the Bill. Such payments were different from compensation arising from land resumption which was specified in item 1 in Part II of the Schedule. On the rationale for the condition that disturbance payment was only payable for interference with a trade or business which lasted for more than 14 days, the Principal Assistant Secretary for Planning, Environment and Lands (Special Duties) (PAS for PEL) advised that this provision was modelled on the Roads Ordinance. It was considered that business losses caused by direct interference during construction should be compensated provided that such an interference exceeded a certain reasonable time limit. This limit was set at 14 consecutive days. Some members considered this limit arbitrary and that duration of interference was not the only relevant factor in measuring the extent of disturbance.
A member questioned if compensation would be paid to nearby residents for inconvenience caused due to road closure. SALD (Atg) explained that only persons who had a compenstable interest in the land the access to which was adversely affected would be eligible for disturbance payment. PAS for PEL agreed to clarify the meaning of "road" referred to in item 4 of Part II of the Schedule, in particular whether open areas in front of small houses would be covered. As regards a members enquiry about eligibility of foodstall owners whose businesses were seriously affected by the construction works for compensation, PAS for T(TI)4 advised that ex-gratia allowances had been paid to these persons on several occasions. The member was of the view that statutory compensation instead of ex-gratia payments should be given in these circumstances. In view of members concerns, DS for T undertook to clarify the classes of persons who might be entitled to disturbance payments and review the stipulated eligibility criterion for entitlement to disturbance payments in section 4. PAS for PEL also undertook to provide a table setting out the number of disturbance payments in small and large amounts made under the MTRC Ordinance and the Roads Ordinance, and the number of refusal cases for members reference.
Section 5 Unlawful building works
Section 6 Compensation where damage results only partly from the scheme
Members had no comments on these sections.
Section 7 No compensation under item 8 for loss of advertising
In response to members, PAS for PEL affirmed that shop-signs would generally be regarded as fixtures of a building. Compensation would be paid if the related land was resumed and the building demolished. In the event that an authorized shop-sign needed to be removed alone, it would be assessed individually and compensation would normally be paid to the owner concerned.
Section 8 Set off where compensation paid for loss of value and land after resumed
A member considered it unfair to deduct disturbance payment already issued to affected parties in assessing compensation for subsequent land resumption as these payments served different purposes. Some members were concerned about the right of affected parties to raise objections to such land resumption. DS for T noted members concerns and undertook to clarify these later.
Section 9 Claim by a mortgages in possession
Members had no comment on this section.
Section 10 Limitation on compensation payable under item 9
A member was concerned about entitlement to compensation should a building plan be rejected by the Building Authority (BA) because of incompatibility with the railway project. In response, PAS for PEL advised that the landowner could apply for land resumption in such circumstances. If the application was turned down by the Governor-in-Council, he might seek a review from the Lands Tribunal. As regards members concerns over diminution in the open market value of the land on which the building works were carried out in accordance with an amendment required, or condition imposed, by BA under clause 27(1)(c) or (d) to avoid incompatibility with the railway works, DS for T agreed to consider providing compensation under such circumstances and to give examples of any such cases for members reference.
III Any other business
There being no other business, the meeting ended at 10:30 a.m.
Provisional Legislative Council Secretariat
26 November 1997
Last Updated on 7 December 1997