LegCo Paper No. CB(1)1032/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/BC/7/96/2

Bills Committee on Railways Bill

Minutes of meeting held on Tuesday, 21 January 1997, at 8:30 am in Conference Room A of the Legislative Council Building

Members present:
    Hon CHAN Kam-lam (Chairman)
    Hon LAU Wong-fat, OBE, JP
    Hon Edward S T HO, 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
Members absent:
    Hon Ronald ARCULLI, OBE, JP
Public officers attending:
    Mr Paul LEUNG, JP
    Deputy Secretary for Transport
    Mrs Jenny Wallis
    Principal Assistant Secretary for Transport
    Mr Johnny CHAN
    Principal Assistant Secretary for Transport
    Ms Linda SO
    Principal Assistant Secretary for Transport
    Mr Trevor Keen
    Principal Assistant Secretary for Planning, Environment and Lands (Lands)
    Mr Anthony Watson-Brown
    Senior Assistant Law Draftsman
    Mr C K MAK
    Government Engineer/Railway Development
Clerk in attendance:
    Mrs Vivian KAM
    Chief Assistant Secretary (1)2
Staff in attendance:
    Miss Connie FUNG
    Assistant Legal Adviser 3
    Mr Matthew LOO
    Senior Assistant Secretary (1)4

Before starting the meeting, the Chairman reported that letters inviting comments on the Bill had been issued to the Mass Transit Railway Corporation (MTRC), the Kowloon-Canton Railway Corporation (KCRC), and the Hong Kong Institute of Architects/Surveyors/Engineers. Advertisements had also been placed in two local newspapers inviting comments from the public. The deadline for submissions was 25 January 1997. One representation from MTRC had so far been received and circulated to members vide LegCo Paper No. CB(1) 729/96-97.

I.Administration's response to concerns raised by members at the meeting on 9 January 1997

(Paper No. CB(1) 720/96-97(01) -- Response from the Administration)

2. Hon LAU Wong-fat was of the view that railway projects had significant effect in the New Territories owing to the extensive land requirements and the large number of graveyards affected. In view of the complicated and sensitive nature of the issue, he asked if the Administration had any plans to consult the New Territories Heung Yee Kuk. He also enquired about the need for a new legislation for railway projects. In response, the Deputy Secretary for Transport (DS) affirmed that the Administration would consult such local organizations as the New Territories Heung Yee Kuk on the Bill and the District Boards on the railway projects. He added that none of the existing ordinances was entirely suitable for implementing railway projects since provisions such as powers to resume underground strata, publication of plans and objections were not specifically stated in those ordinances. A new legislation had therefore been drafted to incorporate necessary provisions to facilitate the implementation of railway projects in general. Members took note of Hon LAU Wong-fat's request for the Bills Committee to meet with the Heung Yee Kuk.

3. Members enquired about the timetables proposed by KCRC and the Administration for the Western Corridor Railway (WCR) project and expressed concern at the target completion dates in view of the works involved. DS and the Government Engineer/Railway Development (GE/RD) advised in response that KCRC had made over-optimistic assumptions on the progress of land resumption and construction for the project; these were considered impractical by the Administration. The assessment by the Administration was an updated estimate and this would also cater for the proposed WCR extension to Tuen Mun Central. They affirmed that provisions of the Bill would not pose particular difficulties for the Administration in resuming land for the WCR. As regards the proposed completion date of September 2003, DS advised that this date had been reported to the Transport Panel at the meeting in December 1996. At members' request, he undertook to provide an updated Project Master Programme of the WCR project setting out the schedule for each station. On the progress of clearance of the San Fat Estate which was claimed to be a hindrance to the project, GE/RD advised that members would be informed of further developments regarding the clearance of San Fat Estate in due course.Admin

4. Drawing on past experiences on the time required for resolving objections of projects such as the Route 3, members enquired if the procedures from gazettal to authorization of the WCR scheme could be realistically completed within one year as estimated by the Administration. In response, DS affirmed that the Administration would take immediate action on objections received to expedite the process; additional resources had also been earmarked in the next financial year to meet the tight schedule of the project. On the 34 months estimated for resolving objections and resuming land for the project, DS said that this comprised 10 months for handling objections and 24 months for land resumption. In commenting on the recent incident in Yick Yuen Chuen where residents were deprived of the right to object to the revised alignment plan for overhead power line, the Principal Assistant Secretary for Planning, Environment and Lands (Lands) (PAS for PEL) advised that similar situations should not arise with the enactment of the Bill. Affected parties would have the opportunity to object to amendments to a scheme. He acknowledged that this arrangement might prolong the time required for a railway scheme as affected parties would be allowed to make objections within 60 days of publication of the notices. The Administration should therefore have all the more reason to get the railway alignment right so as to avoid amending the scheme.

5. Hon Albert HO Chun-yan said that as the Bill had significant consequences on railway projects, its provisions must be fair and there should be recourse to public hearings for persons raising objections. He proposed the establishment of an independent panel comprising professionals from different disciplines without vested interests to handle objections. This panel could form sub-committees for dealing with cases so as to expedite the process, and panel members would have the discretion to conduct public hearings for objectors. He estimated that all objections could thus be settled within four to six months, and proposed that unresolved cases could be reported to the Governor in Council for final decisions. He undertook to provide the Bills Committee with an information paper setting out details of his proposal. Hon Albert CHAN Wai-yip also suggested setting up an independent mechanism for handling appeals. Both members urged the Administration to consider adopting an open mechanism for dealing with public objections as proposed in the Town Planning White Bill which had introduced an improved mechanism for handling objections. DS foresaw practical difficulties in introducing the proposed mechanism in view of the extensive coverage of railway projects. He was also concerned that this would cause delay to completion of the Western Corridor Railway which was urgently needed to provide relief to Northwest New Territories residents. Nevertheless, he undertook to consider members' views. PAS for PEL stressed that the Executive Council was considering objections currently and had the duty to act reasonably. Channels also existed for challenging decisions by way of judicial reviews.

Hon Albert HO Chun-yan

(Post-meeting note: The proposal from Hon Albert HO Chun-yan was circulated vide LegCo Paper No. CB(1) 800/96-97.)

II.clause-by-clause examination of the Bill

6. Members then proceeded with a clause-by-clause examination of the Bill.

clause 1Short title and commencement

7. Members had no comments on this clause.

clause 2Interpretation

8. On the definitions for the terms "developments above stations" and "other railway property", PAS for PEL and the Senior Assistant Law Draftsman (SALD) said that the former implied residential and commercial properties above railway stations and these developments should be within the jurisdiction of the Town Planning Ordinance. The latter referred to such premises as depots or rail yards constructed along the rails instead of above the stations. SALD agreed with members on the need for providing a clear definition for "other railway property" and refining the interpretation of the phrase under "railway", and would follow up accordingly.Admin

clause 3Assumption and delegation by Secretary

9. Members had no particular comments on this clause.

clause 4Preparation of scheme

10. In response to members, DS advised that minor works were confined to those authorized by the Secretary for Transport (S for T) under clause 15.

clause 5Inspection and survey

11. As regards inspections and surveys authorized by S for T for the preparation of railway schemes, DS and PAS for PEL assured members that the Administration would only approve necessary works and keep disruption to a minimum. S for T would bear ultimate responsibility for ensuring that such a power would not be abused. PAS for PEL affirmed that existing railway operators were also empowered to carry out site investigations and tests including drilling and excavating, and undertook to check on previous occasions when such powers under the Roads (Works, Use and Compensation) Ordinance and the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance had been exercised. He advised that he was not aware of any cases of refusal to entry in the past. SALD added that objectors could seek judicial reviews against S for T's decision, but any wilful obstruction to authorized works would be subject to punishment under clause 29 of the Bill. On the compensation payable as a result of the exercise of the above powers, some members noted that affected parties would only be entitled to compensation for areas where inspections were carried out whereas operators of fish-farms or restaurants would not be eligible for compensation despite the adverse effect on their businesses. In response, PAS for PEL clarified that compensation including disturbance payment would be payable to affected parties under the Bill and this mechanism was currently applicable also under the Roads (Works, Use and Compensation) Ordinance. Advance ex-gratia payment had been paid in the case of earlier railway projects to assist affected operators in continuing their business before their statutory claims for compensation were processed. He undertook to set out the existing mechanism for assessing and calculating compensation and disturbance payment for members' reference.Admin

clause 6Deposit and publication of schemes

12. DS and PAS for PEL said in response to a member that copies of railway schemes would be deposited both in District Land Registries and District Offices. On the cost payable by members of the public for obtaining photocopies of the scheme, DS assured members that the Government would only charge reasonable costs to recover the cost and undertook to check the details for members' information.Admin

clause 7Amendment of schemes

13. Members had no particular comments on this clause.

clause 8Corrections

14. Members expressed concern on whether S for T was over-empowered in making corrections which were exempted from the same gazettal requirements as original schemes or amendments. PAS for PEL advised that corrections only referred to minor changes, and private rights or interests should not be affected by these changes. This arrangement, which was a change from the Roads (Works, Use and Compensation) Ordinance, was considered essential as a considerable number of corrections were expected for large-scale schemes as railway projects. The public would be informed of such corrections although they would not be allowed to raise objections or else the gazettal requirements for these minor changes would delay the whole project. In case it was unclear whether private rights were affected, the Administration would classify related changes as amendments rather than corrections. He added that members of the public might seek judicial reviews or lodge complaints to the Ombudsman if they considered that their rights to compensation had been deprived due to the corrections.

clause 9Decision not to execute works

15. Members had no particular comments on this clause.

clause 10Objections

16. On a member's suggestion for devising a standard form to facilitate the lodging of objections, PAS for PEL advised that there would be a wide range of reasons for objections and a standard form might restrict the objectors from expressing their views. Nevertheless, he agreed at the Chairman's request to consider this suggestion administratively rather than incorporating it in the Bill.Admin

clause 11Procedure after publication of scheme

17. Hon Albert HO Chun-yan remarked that his proposal for an independent mechanism for handling objections could be included under this part.

clause 12Power to reconsider any scheme

18. PAS for PEL clarified that clause 12 was aimed at empowering the Governor in Council to deal with objections by imposing amendments or conditions to a scheme to make minor changes including the removal of conditions no longer required to deal with objections. It was different from the gazettal requirements for amendments stipulated in clause 7.

clause 13Scope of railway

clause 14Secretary may exercise powers

19. Members had no particular comments on these clauses.

clause 15Minor works

20. In response to members, DS, PAS for PEL and SALD advised that clause 15 should apply only to closure of public roads. PAS for PEL supplemented that logistic works outside the boundaries of the scheme would be necessary to facilitate the construction of railways. Where private land and roads were required for railway schemes, the Administration would carry out land resumption to protect affected parties' rights for compensation. Nevertheless, SALD agreed with members that the provisions under this clause were not clearly defined and undertook to clarify if public or private roads were being referred to and to refine the clause, including the term "public roads" in clause 2, as appropriate. DS also advised that the Administration would try its best to provide alternative routes for roads which had been closed under provisions in the Bill, and agreed to consider providing an assurance in this respect. As regards clause 15(2), SALD undertook to clarify whether persons could apply for judicial reviews on minor works authorized by S for T.Admin

clause 16Governor may order resumption of land

clause 17Land required for public purpose

clause 18Resumption order

21. Members had no particular comments on these clauses.

clause 19Notices of resumption of land

22. On clause 19(1)(c), DS and PAS for PEL advised that notice of resumption would be made available for inspection by the public at District Offices and District Lands Offices.

clause 20Governor may order creation of easements and rights

23. A member enquired if a notice period would still be allowed for members of the public to raise objections to the creation of easements and other permanent rights ordered by the Governor. In response, PAS for PEL clarified that this clause referred to schemes which had already been authorized by the Governor in Council. A notice period was deemed unnecessary as objections could only be raised before schemes were authorized. In response to the Chairman on the emergency situations under clause 20(5) which might necessitate immediate entry into land, PAS for PEL explained that this might include faults in electrical systems or accidents where immediate access would be required to service and repair the system.

clause 21Notices of creation of easements or other rights

24. The Chairman noted that some landlords might be residing overseas and it might not be possible to serve on them directly notices on the creation of easement. Furthermore, for cases of disputes over land ownership, which were very common for land in the New Territories shared by several parties and managed by "Tsao Tong", the Administration would not release compensation to parties concerned until the disputes were resolved. A member suggested that under such circumstances, the Administration should direct that interest be paid on compensation due to the land resumption until the landlords initiated claims from the Administration. In response, PAS for PEL advised that the Administration would try its best to contact affected parties but agreed that landlords residing abroad might pose problems. Notwithstanding this, their rights to compensation would not be deprived as they could apply under the Lands Tribunal Ordinance for payment of compensation by the Government. Although the Lands Tribunal did not normally consider cases beyond five years, there could be exceptions. Landlords who had disputes on land ownership could also initiate claims through this channel once their disputes were resolved. On the question of interest on compensation, PAS for PEL advised that provisions existed for interest payment in the event of delay. He stressed however that the onus was on an owner to be kept informed of happenings locally while residing overseas. The Chairman concluded that the subject of interest payment could also be discussed at a later stage in relation to clause 38.

III.Any other business

25. The Chairman reminded members of the next meeting scheduled for on 24 January 1997 at 4:30 p.m. The meeting ended at 10:40 a.m.

(Post-meeting note : The meeting on 24 January 1997 was advanced from 4:30 p.m. to 2:30 p.m.)

Legislative Council Secretariat
10 March 1997

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