Tel. No. 2810 2937
Fax No. 2868 5261
TBCR2/1/2/1016/89(97)Pt.7
CB1/BC/7/96
29th January 1997
Mrs Vivian Kam
Clerk to Bills Committee
Legislative Council
Citibank Tower 3/F
Garden Road
Hong Kong
Dear Mrs Kam,
Bills Committee on Railways Bill
Follow up to meeting on 21 January 1997
Thank you for your letter of 22 January 1997. Our responses to the issues raised in your letter are set out below.
Project Programme for Phase I of the Western Corridor Railway
The requested Project Programme is annexed. As explained at the meeting on 21 January, the 34 month-period projected in Annex C of our reply dated 16 January 1997 includes about 10 months for resolving objections and about 24 months for land resumption and clearance. This breakdown has also been included in the Project Programme which is annexed.
Definition for "railway"
We propose to amend the definition of "railway" by putting the exclusions at the end of the definition and to add the words "non-railway" before the word "developments". The definition will read "..........tunnels, stations, goods and rail yards, car parks and other areas for ancillary uses but excludes non-railway developments above stations or above other railway property".
Powers to carry out site investigations
Clause 5 of the Railways Bill models on section 6 of the Roads (Works, Use and Compensation) Ordinance (Cap 370) (Roads Ordinance). Section 6 of the Roads Ordinance is an important provision and that section 6 has been invoked in the past for highways projects such as New Territories Circular Road Improvements Au Tau to Fan Kam Road and North West New Territories Development Yuen Long Southern Bypass.
We believe that such a provision is essential for the preparation of a railway scheme which is no less complex than a road project. However, we will make every effort to minimise the need to invoke this provision by carrying out the investigative works on Government land wherever possible. In addition, we will make every endeavour to obtain the agreement of the owner of any land or building for which entry is required.
The Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (Cap 276) contains provisions which empower the Corporation to carry out inspections and surveys only after a railway area plan is gazetted. We understand from the Mass Transit Railway Corporation (MTRC) that there were instances in the past where they had to enter private property to carry out preparatory investigative works for the purpose of the railway. In those cases, MTRC had to seek the agreement of the owners concerned.
We have consulted MTRC on this issue and their opinion is that clause 5 of the Railways Bill is necessary for the preparatory work of a railway. In fact, they would also need to enter private property to carry out investigative works for the imminent railway projects of the Corporation. Pending any such empowering provisions being in place, they will have to make their own arrangements to enter private property.
Existing mechanism for assessing and calculating compensation and disturbance payment
In the context of examining Clause 5 of the Railways Bill, Members were concerned about the interruption which could be caused to businesses and the resulting assessment and calculation of compensation and disturbance payment.
We have consulted our colleagues in the Lands Department as to the existing mechanism for such assessment and calculation and their response is set out in the following paragraphs.
Business loss is usually assessed on one of two bases, relocation or extinguishment. For example, if the business is not tied to the premises resumed, relocation basis can be assumed; otherwise, assessment would be on a total extinguishment basis.
The main heads of claim under relocation would be -
- temporary and/or permanent loss of goodwill;
- removal costs (for fixtures and fittings, plant and machinery, stock etc.); and
- abortive costs (e.g., double overheads, stationary, transitional building and accommodation works).
For total extinguishment, examples of heads of claim are -
- loss of goodwill;
- loss of profit rent;
- loss on plant and machinery;
- loss on fixtures and fittings;
- loss of stock; and
- other losses due to the resumption.
These are generalisations and calculation of business loss will always depend upon the circumstances of each individual case. Due regard must also be given to specialist trades, and the availability of certified accounts and records and tax returns, as well as to the eligibility of the claimant in accordance with the provisions of the legislation.
If no land resumption is involved, claims will be confined to disturbance caused by the works, and would normally involve temporary and/or permanent loss of goodwill, the removal of minor structures, and the incursion of transitional accommodation costs. Again, due regard must be paid to the items mentioned in the foregoing paragraph where applicable.
In order to alleviate losses suffered by businesses while claims for statutory compensation are being processed, a system of ex-gratia advance payments has been applied to previous railway projects, including the Airport Railway. A similar arrangement would be considered for future projects where necessary.
Cost for obtaining photocopies
The current photocopying charges, calculated on a cost-recovery basis, are payable by members of the public who wish to obtain photocopies of documents which are of A4 or A3 sizes from Government:
- $6.10 each for the first 20 copies; and
- $1.40 each for any additional copies in the same booklet, report or file.
A railway scheme will consist of plans, and the current charges for reprographic services in Highways Department are as follows:
|
|
| a. diazo prints of standard plans (1000/900 mm x 760 mm) or smaller
| $40 each
|
| b. non-standard diazo prints from 841/914 mm width roll | $15 per 300 mm unit length; with a minimum charge of $40 each |
Standard form for lodging of objections
We will consider providing by administrative means a standard form to facilitate the lodging of objections. However, it is highly likely that objections will vary considerably and very few standard items exist.
Clause 15 - Minor Works
We confirm that the application of clause 15 of the Railways Bill will be restricted to public roads only. The provision will be amended to make this clear. In addition, clause 15(2) would not prevent a person from seeking a judicial review in respect of the Secretary for Transports assessment that the works are minor in terms of clause 15(1)(a).
On the point of alternative access, it is normal practice to re-provision for loss of access due to closure of roads for minor works.
Independent mechanism for handling objections and appeals
We would like to emphasize that the mechanism for handling objections under the Roads Ordinance has been in use for almost two decades and it is a system that is tried and trusted.
The project office, i.e., Highways Department in the case of railway projects, will get in touch with the objectors and meet with them if necessary to understand the objections to the fullest possible extent. Close follow-up actions are taken to ensure timely responses are made. In addition, the objectors must be given the chance to have their last say on any unresolved issues. We believe that this process is even more interactive and open than any hearings conducted in public.
Any unresolved objections will then be referred to the Governor in Council who is bound to consider all objections before making a decision on a scheme. In view of this, an appeal mechanism is deemed not necessary. In any case, the decision of the Governor in Council is subject to judicial review.
Some Members have made reference to the appeal mechanism of the Town Planning White Bill where appeals against the decisions of the Town Planning Board are heard by the Town Planning Appeal Board. We would like to clarify that for draft plans under the Town Planning White Bill which are initiated by the Government, and which are subject to the objections/representations from members of the public and where the final decisions rest with the Governor in Council, this appeal procedure does not apply.
Yours sincerely
(Mrs Hedy Chu)
for Secretary for Transport
bcc SPEL (Attn: Mr Trevor Keen)
AGC (Attn: Mr Anthony Watson-Brown/Mr Allen Lai
Mr James ONeil and Mr TANG Kwok-wai)
D Hy (Attn: Mr C K Mak)
D of Lands (Attn: Mr Roger Harding)
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