Legislative Council Panel on Transport
Legislation for Implementation of Railway Projects
The purpose of this paper is to inform Members of the present position regarding the preparation of legislation for the implementation of railways projects.
2. There is at present no suitable legal framework for the implementation of new railway projects. This framework would need to contain provisions for the preparation and publication of plans, objections, payment of compensation to persons whose interests are affected, resumption of land or strata, and creation of temporary and permanent easements and wayleaves. We have examined existing ordinances with land resumption provisions but none is entirely suitable for the purpose of implementing railway projects. The inadequacies of these ordinances are summarised in the following paragraphs.
Crown Lands Resumption Ordinance (Cap 124)
3. This Ordinance gives Government powers to resume land but does not specifically provide for the resumption of underground strata (part of the railway alignment is underground). More important, this Ordinance is designed primarily for the implementation of public projects on relatively small single sites involving resumption of single lots or groups of lots in the same area. There are no provisions for the publication of plans, for inviting objections, and for the creation of easements etc. which are likely to be required.
Roads (Works, Use and Compensation) Ordinance (Cap 370) (Roads Ordinance)
4. This Ordinance contains many of the provisions necessary for the implementation of railway projects, but is applicable only to road projects.
Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (Cap 276)
5. This is the only legislation which provides for the construction of railways, but it is confined to those constructed by the Mass Transit Railways Corporation (MTRC). This Ordinance does not contain any provision for public consultation or objection.
The Railways Bill
6. We therefore intend to introduce the Railways Bill to provide the necessary legal empowerment to enable land resumption and engineering works for any future railway projects to be undertaken.
7. The Bill is modelled mainly on the Roads Ordinance with some improvements to the existing procedures for land resumption.
Provisions which are modelled on the existing Roads Ordinance
8. The proposed new legislation requires a scheme for any proposed railway to be prepared and published. The scheme will have attached to it a plan delineating the area of the railway within which land may be resumed, easements or other rights in, under or over land may be created or private rights affected for the purposes of or incidental to the railway. The scheme describes the nature and effects of the railway and the land to be affected. Provision has been made for the Secretary for Transport (Secretary) to authorise, after giving due notice, any person to enter land or building for site inspections and surveys for the preparation of the scheme.
9. A notice of the deposit of the scheme has to be published and any person may object to the proposed scheme by lodging a written notice to the Secretary within 60 days of the publication of the notice. Provisions have been made for making corrections to, amending or replacing the scheme.
10. If there is no objection to the scheme, the Secretary can authorise the scheme. Any objections are required to be considered by the Governor in Council who may decline to authorize the scheme, or authorize the scheme with or without modification and subject to such conditions designed to avoid or lessen any adverse effects of the scheme.
11. The authorization of the scheme will give rise to the exercise of certain statutory powers under the Bill, subject to any modification or condition imposed by the Governor in Council. Such statutory powers available under the Bill are powers -
- to resume land;
- to create easements and other rights;
- to close roads, authorize reclamation and extinguish, modify or restrict public or private rights in respect of roads, foreshore or sea-bed;
- in default of agreement with persons affected, to enter land or buildings, after giving due notice, for the purposes of inspection, valuation, site investigation, test, survey or setting out any line of works in connection with the scheme and to carry out any necessary preventive or remedial works;
- to alter the course of utility services at the expense of the utility company; and
- the Building Authority is empowered to ensure that any proposed building development on land described in the scheme is compatible with the scheme.
12. The Bill sets out exhaustively and clearly all rights to compensation that may flow from the carrying out of the scheme authorized under the Bill. These provisions are the same as those in the Roads Ordinance, and set out the precise scope of claims for compensation flowing from the scheme and the quantum of each claim is determined by reference to the facts of the particular case.
13. The Bill prescribes a detailed claims procedure with provision for the Lands Tribunal to extend the period of claim where appropriate. The Lands Tribunal is given jurisdiction to hear and determine all claims for compensation under the Bill which the parties have been unable to agree.
14. Some improvements to the existing procedures for land resumption are proposed to be introduced. These improvements are based on Lands Departments past experience in dealing with road projects and are intended to strike a balance between speeding up the land resumption process while not compromising the rights of affected parties.
15. These improvements include, for instance, enabling the Secretary to publish a correction to a scheme. Such corrections are limited to minor discrepancies which do not affect private rights and there is no need to re-gazette the entire scheme or amend the scheme due to such errors. Where a scheme has been amended, objections could only be lodged against the amended part of the scheme. An amendment to an objection must be made within 60 days of lodging of the objection.
Implications for West Rail
16. The early enactment of the Railways Bill is essential for the West Rail project. While certain planning work could be undertaken prior to the enactment, the alignment cannot be finalised until all the required investigative works are completed. Such investigative works include site inspections and surveys of private properties which KCRC would require authorisation under the Bill to enter. In addition, the Ordinance has to be in place before the railway scheme could be gazetted.
Implications for Quarry Bay Congestion Relief Works and Tseung Kwan O Extension
17. In order not to delay the progress of the Quarry Bay Congestion Relief Works which is urgently needed to relieve congestion and improve safety at the Quarry Bay Station, we intend to proceed with this project under the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (Cap.276) rather than withhold the project until the enactment of the Railways Bill. It should be noted that the scale of land resumption involved is relatively small. Should the Railways Bill not be enacted by the time the Tseung Kwan O Extension is ready to proceed, we intend to go ahead in a similar manner.
18. We intend to introduce the Bill into the Legislative Council before the end of the year. We are drafting the Bill and are liaising closely with all relevant Branches and Departments in order to finalise the Bill and to refine the above provisions. We aim to have the new legislation enacted in the first half of 1997 to enable the West Rail project to proceed as soon as possible.
1 November 1996
Last Updated on 21 August 1998