For discussion FCR(96-97)94
on 17 January 1997

ITEM FOR FINANCE COMMITTEE

CAPITAL WORKS RESERVE FUND
HEAD 701 - LAND ACQUISITION
HEAD 91 - LANDS DEPARTMENT
Subhead 221 Clearance of Crown land - ex-gratia allowances
Ex-gratia allowances for loss of crops arising from clearances

Members are invited to approve changes to the basis on which ex-gratia allowances for loss of crops arising from clearances are paid to farmers who occupy Government land under the terms of a Crown Land Licence.

PROBLEM

We need to improve the present arrangements for granting ex-gratia allowances to affected farmers for loss of crops arising from clearances of Government land.

PROPOSAL

2. We propose that changes as set out in paragraph 5 below be made to the basis on which ex-gratia allowances for loss of crops arising from clearances are paid to farmers who occupy Government land under the terms of a Crown Land Licence (CLL). The changes will apply to clearances which have yet to be carried out.

JUSTIFICATION

3. It is Government’s general policy on compensation and ex-gratia allowances in clearances to confine eligibility to commitments or obligations arising from the area within the designated clearance boundary. We have applied this policy to both development clearances and non-development clearances. In a development clearance (i.e. one required to allow a public works project to proceed), the clearance boundary includes all the necessary working space to complete the project. In a non-development clearance (mostly in respect of structures at risk due to potential slope failure), the clearance boundary is, strictly speaking, confined to the perimeters of those individual structures identified as being at risk due to potential slope failure. In practice, we normally set the boundary at ten metres from each side of the structures to be cleared. We have adopted this approach because we recognise that where the land to be cleared is used for cultivation, crops within this clearance boundary can easily be damaged by either the demolition exercise or any subsequent remedial slope work that may be required.

4. Arising from a number of non-development clearances in recent years, we have received representations from some affected farmers. They have argued that the Government should pay them ex-gratia allowances for loss of all crops regardless of whether the crops fall within the clearance boundary or not. Clearly, we cannot agree to this suggestion which is a significant departure from the existing policy.

5. However, in the light of discussions with members of the Legislative Council Panel on Planning, Lands and Works, we acknowledge that, for farmers who occupy Government land under a valid CLL, some improvements can be made to the present basis for granting ex-gratia allowances for loss of crops arising from clearances, to take account of the practical circumstances they may face. For example, the clearance of part of the land they occupy may make it practically difficult for them to continue farming in the remaining adjoining area. To take care of such situations, we have concluded that there is a case for revising the existing basis for granting ex-gratia allowances for loss of crops arising from clearances, on an exceptional basis, to these farmers. Under our proposed arrangements, they will be eligible for ex-gratia allowances for loss of crops in respect of -

  1. cultivated areas falling within the clearance boundary;
  2. cultivated areas falling outside the clearance boundary but within the CLL boundary, provided that the CLL covering the areas concerned will also be cancelled; and
  3. cultivated areas falling outside the clearance boundary but within the boundary of a valid CLL held by an immediate family member (i.e. spouse, children, grandchildren, parents, brothers and sisters) of the affected farmer, provided that the immediate family member lives with the affected farmer, the areas concerned adjoin that under a CLL held by the affected farmer, and the CLL held by the immediate family member will also be cancelled.

    We propose that these changes should also be applied to miscellaneous permanent improvement items such as fences, wells, irrigation pipes for which ex-gratia allowances are payable under existing policy.

6. In cases where a CLL licensee has died and the land is being occupied and farmed by an immediate family member of his/hers, we will pay the ex-gratia allowances to the immediate family member, provided that -

  1. the recipient can produce evidence or in the absence of such evidence, a statutory declaration showing his relationship with the deceased; and
  2. the recipient would have become the licensee under the existing policy if he/she had applied for a transfer of the CLL at the time of the original licensee’s death.

This is consistent with current practice.

FINANCIAL IMPLICATIONS

7. We are unable to quantify precisely the additional expenditure arising from the proposed changes because it is not possible to predict the precise extent of future non-development clearances. However, to illustrate the extent of the likely financial implications, we have chosen a recent non-development clearance in Sha Tin and made calculations on the basis of the revised arrangements for payment of ex-gratia allowances we are now proposing. In that case, the total ex-gratia allowances paid for loss of crops were $580,000 under the existing arrangements. Had the proposed changes been applied, the total ex-gratia allowances payable would have been $930,000 or some 60% more than that payable under the existing arrangements.

BACKGROUND INFORMATION

8. We have been in discussion with the Legislative Council Panel on Planning, Lands and Works on this subject. We have also met some affected farmers a number of times. The proposals have been drawn up having regard to their views.

Planning, Environment and Lands Branch
January 1997

Last Updated on 5 August 1999