LegCo Paper No. CB(1)1283/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/BC/7/96/2

Bills Committee on
Railways Bill

Minutes of the Meeting
held on Friday, 24 January 1997,
at 4:30 pm 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
    Hon Zachary WONG Wai-yin
    Hon Albert HO Chun-yan
    Hon NGAN Kam-chuen

Members absent :

    Hon Ronald ARCULLI, OBE, JP
    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP

Public officers attending :

Transport Branch

Mr Paul LEUNG, JP,
Acting 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
Government Engineer/Railway Development

Clerk in attendance:

    Mrs Vivian KAM

Staff in attendance :

Miss Connie FUNG,
Assistant Legal Adviser 3
Mr Matthew LOO,
Senior Assistant Secretary (1)4

I Confirmation of minutes of previous meeting

(LegCo Paper No. CB(1) 744/96-97)

The minutes of the meeting held on 9 January 1997 were confirmed.

2. The Chairman advised that a submission from the Kowloon-Canton Railway Corporation had been received and circulated to members vide LegCo Paper No. CB(1) 768/96-97.

3. Hon Albert HO Chun-yan sought clarification from the Administration on the discrepancies between the Crown Lands Resumption Ordinance and the Bill on the principles of assessment of compensation. He pointed out that the right to compensation would be barred if a claim was not served before the expiry of the period (normally one year) specified in Schedule II of the Bill. Although affected parties could apply to the Lands Tribunal to extend this period, he was unconvinced of this requirement which was not stipulated in the Crown Lands Resumption Ordinance. Furthermore, he noted that the principles of compensation assessment and professional charges reimbursement stipulated in sections 10 and 11 of the Ordinance were not clearly stated in the Bill. He enquired if the Administration had a special standard in calculating compensation due to railway projects. In response, the Principal Assistant Secretary for Planning, Environment and Lands (Lands) (PAS for PEL) advised that the Crown Lands Resumption Ordinance drafted about 90 years ago dealt with land resumption in general. It served a different purpose from the Bill which aimed at establishing a gazettal mechanism specifically for railway projects. He referred members to paragraph 1 of Part II of the Schedule which stated that compensation for the resumption of land under the Bill would be made as if the claim were dealt with under the Crown Lands Resumption Ordinance. He emphasized that the Administration would adopt consistent standards in dealing with compensation matters due to land resumption. Both PAS for PEL and Senior Assistant Law Draftsman (SALD) also affirmed that the Administration would pay reasonable rates to cover professional charges spent by aggrieved persons as part of the compensation. This arrangement was reflected in several clauses in the Bill such as clause 39 on Compensation payable out of general revenue. Nevertheless, the Administration would look into the differences mentioned above. As a related issue, the Assistant Legal Advisor 3 (ALA3) undertook to provide a table comparing provisions in the Bill concerning land resumption procedures and assessment of compensation with those in the Crown Lands Resumption Ordinance, the Roads (Works, Use and Compensation) Ordinance and the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance for reference. The Acting Secretary for Transport (S for T (Atg)) also assured members that the Administration would ensure that the right to compensation of affected parties would not be deprived.

4. Some members noted that clause 28 of the Bill only stipulated the statutory resumption compensation for areas affected by the implementation of the railway. In case affected landowners did not request the Administration to resume their lands, members suggested that compensation should be payable to compensate for the diminution in values of their lands. They pointed out in particular that noise nuisance was a main factor affecting the value of land adjacent to the railway, and it should be taken into account in the calculation of compensation by the Administration. Other members however had reservations on this proposal since the reverse might occur. PAS for PEL undertook to consider the above suggestions which was different from the compensation arrangements proposed in the Bill and contained in other similar legislation.

5. The Chairman also advised that ALA3 had sought clarifications from the Administration in early January on a number of aspects in the Bill; copies of correspondences had been circulated to members vide LegCo Paper No. CB(1) 743/96-97. At the Chairman’s invitation, ALA3 briefed members on the salient points of the Administration’s response to her concerns, and raised in particular the following for members’ consideration:

  1. clause 28(2) on Resumption of land on application had not stipulated any time limit within which an aggrieved person might apply to the Lands Tribunal to review the Governor’s decision not to order resumption of land contiguous or adjacent to the land resumed. Members could consider whether such a time limit should be introduced;

  2. clause 39 had not set out the arrangements if no claim had been made for the compensation within three months of the agreement or final award. As the Foreshore and Sea-bed (Reclamation) Ordinance stipulated that any compensation not drawn by the aggrieved person within the statutory period could be absorbed into the general revenue, members might wish to check with the Administration on where the money would go;

  3. the Administration had advised that ALA3’s suggestion for specifying the types of statements under clause 41(a) as prima facie evidence, conclusive evidence or evidence until the contrary was proved would contravene the Hong Kong Bill of Rights Ordinance. However, as the statements would be in the form of notices issued by the Administration, and as court ruling would not be involved, it would be unnecessary for the court or tribunal to assess the appropriate level of "weight" or evidential value to these statements as suggested by the Administration. Members could therefore consider specifying the nature of the evidence; and

  4. as regards the service of notices, the Administration had advised that either of the means set out in clause 44(1)(a) or (b) would be sufficient. This would appear to contradict clause 44(3) which stated it would be sufficient for the Secretary for Transport to serve a notice by affixing it to the affected land if the address of the affected person was unknown and could not be reasonally ascertained. Members could clarify with the Administration whether either of the means under clause 44(1)(a) and (b) would suffice.

6. In response to a member, the Chairman confirmed that the Committee would be invited to consider inviting relevant bodies including the Mass Transit Railway Corporation and Kowloon-Canton Railway Corporation to present their views on the Bill.

II Clause-by-clause examination of the Bill

7. Members proceeded with the clause-by-clause examination of the Bill commencing with clause 22 on Closure of roads, etc.

Clause 22 Closure of roads, etc.

8. S for T (Atg) affirmed that this clause referred to both public and private roads. He also clarified that works referred to in clause 15 would be confined to public roads, and the Administration would move an amendment to refine the related clauses. On the gazettal arrangement proposed in the Bill for affected foreshore and sea-bed in comparison with similar provisions in the Foreshore and Sea-bed (Reclamations) Ordinance, PAS for PEL advised that arrangements aimed at avoiding any duplication in gazettal publication for a railway project. He undertook to look into the gazettal process of the Foreshore and Sea-bed (Reclamations) Ordinance and the Bill, and to refine the clause if necessary.

Clause 23 Notices of orders for closure of roads, etc.

9. Members had no comments on this clause.

Clause 24 Inspection and preventive and remedial work on land and buildings

10. PAS for PEL and SALD affirmed in response to members that matters relating to compensation issues were addressed in clause 32 and paragraph 7 of Part II of the Schedule. They agreed to consider adopting a consistent approach as in clause 5 where the statutory right to compensation was specified.

Clause 25 Utility services

11. In response to the Chairman, PAS for PEL advised that the proposed arrangements for altering the course and position of utility services were taken over from the Roads (Works, Use and Compensation) Ordinance. At members’ request, S for T (Atg) and PAS for PEL undertook to examine whether the Chinese translation of the term "not later than 28 days before the commencement of that period" under clause 25(2)(c) was appropriate.

Clause 26 Removal of projections or obstructions

12. According to paragraph 8(a) of Part II of the Schedule, compensation could only be claimed for the removal of any object or structure which was erected and maintained without contravening any Ordinance or Government lease. Members enquired whether compensation would be paid for unlawful building works which were removed. In addition, they felt that owners of unlawful building works would wait for the Administration to remove the structures as this would be at the Administration’s expense according to clause 26(4). This was different from clause 25(4) under which the Government would recover the cost for work from an owner who did not comply with the notice. In response, PAS for PEL affirmed that no compensation would be paid for removal of illegal structures and the Administration could recover the cost if actions were taken to remove the structure under the Buildings Ordinance. Nevertheless, he undertook to clarify the arrangements for the removal of unlawful projections or obstruction. In response to a member on the demolition of such illegal building works as small bridge in rural villages which provided main access for residents, SALD advised that such structures would be classified as minor works under clause 15.

Clause 27 Control of building plans and commencement of work

13. S for T (Atg) advised that the Administration would introduce noise mitigation measures for existing buildings affected by new roads and railways. He was however unsure if such a policy would apply to buildings erected after implementation of the railway project and undertook to clarify accordingly. Some members were concerned with whether the Building Authority (BA) was over-empowered in withdrawing plans of building works on or adjacent to lands described in the railway scheme. PAS for PEL advised that works such as the construction of tunnels for railway schemes could affect the foundations of adjoining buildings and it was therefore essential for BA to have the power to control developments along railways. On the withdrawal of an approved plan in particular, he advised that aggrieved landowners or developers would have the opportunity to raise objections during the gazettal period of railway schemes. It was important for BA to have the statutory authority to withdraw building plans even though these had been approved well before the railway scheme was proposed. It would not make sense to allow a development to continue when it was known that it would be incompatible with the construction of the railway. Any delay would increase the compensation amount which would be calculated at market value.

14. A member noted that landowners could request the resumption of land under clause 27(7)(a) if the BA were to impose a condition delaying building works as described in clause 27(1)(d). He enquired if landowners could still exercise such a right under other circumstances such as refusal by BA of approvals to building works which were considered technically unfeasible. PAS for PEL said in response that BA would disapprove plans considered incompatible with the railway scheme. Under such circumstances, landowners would still be able to amend their plans, or request the Administration to resume affected lands under clause 27(6). He took note of a member’s suggestion to consider the need for two separate clauses of 27(6) and 27(7) since both related to a land owner’s right for land resumption.

15. On the subject of compensation, a member noted that an amendment required or a condition imposed under clause 27(1)(c) or (d), other than that stipulated in clause 27(7), could be the subject of compensation under paragraph 9 of Part II of the Schedule. This was however contrary to that provided for under clause 27(7)(a). In response, SALD clarified that the paragraph 9 only referred to compensation relating to amendments or conditions imposed for building plans to avoid incompatibility with the works for the construction of the railway; any compensation due to land resumption under clause 27(7) was specified in paragraph 1 of Part II of the Schedule. He agreed to clarify the conditions for compensation entitlements in the above clauses and to consider re-phrasing relevant clauses and paragraph 9 as appropriate.

16. In response to a member, PAS for PEL advised that clause 27 (10) was for the benefit of affected landowners in order that they could apply for compensation as soon as possible.

Clause 28 Resumption of land on application

17. A member considered that examination of this clause should await the comparison of provisions in the Bill with other related Ordinances concerning land resumption procedures and assessment of compensation. The Chairman also reminded members that they could consider the suggestion for setting a time limit for an aggrieved person to apply to the Lands Tribunal to review the Governor’s decision not to order resumption of land contiguous or adjacent to the land resumed.

Clause 29 Obstruction

18. SALD advised in response to a member that a fine at level 5 was equivalent to $50,000.

Clause 30 No right to compel or restrain

Clause 31 No recovery of money except under this Ordinance

19. In response to members, PAS for PEL and SALD explained that the aim of these clauses was to ensure that compensation would only be applicable to works authorized in the Bill. Persons not entitled to compensation under the Bill would have to pursue their course under the common law. SALD affirmed that such an arrangement would not contravene the Hong Kong Bill of Rights Ordinance. S for T (Atg) undertook to compare these clauses with similar provisions in the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (Cap.276) and to refine the two clauses if appropriate. SALD took note of a member’s suggestion for re-drafting clause 31 as follows for clarity purpose:

"Except to the extent of the rights to compensation under section 32, a person does not have any right against the Government or any other person to recover any money -

  1. for any use authorized under this Ordinance; or

  2. for any works or anything else authorized under this Ordinance."

He also undertook to confirm if the above reflected the intention of the clause.

III Any other business

20. The Committee decided that the next meeting would be scheduled for 4 February 1997 at 8:30 a.m. The meeting ended at 6:30 p.m.

    (Post-meeting note: The meeting on 4 February 1997 was re-scheduled to 28 February 1997 at 8:30 a.m.)

Legislative Council Secretariat
14 April 1997

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