Replies to LegCo questions

LCQ13: Private columbaria

Following is a question by the Hon Tanya Chan and a written reply by the Secretary for Food and Health, Dr York Chow, in the Legislative Council today (February 15):

Question:

Recently, some members of the public have reflected to me that some of the private columbaria (columbaria) in Part B (List B) (i.e. those columbaria that do not fall under Part A which sets out the columbaria that are "compliant with the user restrictions in the land leases and the statutory town planning requirements and are not illegally occupying government land") in the Information on Private Columbaria published by the Government have withdrawn their applications to the Town Planning Board for revising the planning permissions for land. It is understood that these columbaria continue to operate and are still selling niches to members of the public, which means that these columbaria are operating in breach of the planning permissions granted to them; however, up until now, the Government has not put in place any licensing scheme to regulate the columbaria. It has been learnt that the Lands Department (LandsD) has detected a case of occupation of government land by a columbarium in Tuen Mun, and has also rejected an application from a columbarium in Ma Shi Chau of Tai Po for revising its land lease conditions. In this connection, will the Government inform this Council:

(a) of the number of niches currently provided by the columbaria in List B, as well as their prices; whether the authorities will consider immediately collecting the relevant data if they do not have such data in hand; if they will, of the details; if not, the reasons for that;

(b) of the number of complaints received by the authorities in the past three years about columbaria being suspected of breaching the user restrictions in land leases or planning permissions; among these columbaria, the number of those which are confirmed by the authorities to have breached the user restrictions in land leases or planning permissions, and whether all such columbaria have been included in List B; if not, the number of those columbaria which have not been included in List B and the reasons for their exclusion from List B;

(c) whether the authorities will take law enforcement and regulatory actions under the Town Planning Ordinance (Cap. 131) against the columbaria which have withdrawn their applications for revising planning permissions; if they will, of the details; if not, the reasons for that;

(d) whether LandsD will take law enforcement and regulatory actions against the columbaria which have occupied government land or breached land lease conditions; if it will, how it will deal with the columbaria which have breached land lease conditions but are still operating; how the authorities will reduce the impact of their enforcement and regulatory actions on the ashes of the deceased which are placed in the niches of non-compliant columbaria;

(e) given that at present, quite a number of non-compliant columbaria are still selling niches to members of the public, whether the authorities will strengthen public education, so as to enhance their understanding of the regulatory policy on columbaria, and advise members of the public to refrain from buying niches from non-compliant columbaria; if they will, of the details; if not, the reasons for that; and

(f) given that at present, quite a number of columbaria that have been included in List B are still conducting publicity and promotion through various channels, and that quite a number of members of the public are attracted by such promotion efforts to buy niches from these columbaria, whether the authorities will consider restricting the conduct of promotion activities in any form by the columbaria in List B; if they will, of the details; if they will not, the reasons for that?

Reply:

President,

There is general public support for a licensing scheme to enhance the regulation of private columbaria. For this purpose, the Government has worked out the regulatory framework and are now conducting a public consultation on the proposed licensing scheme for private columbaria. The consultation lasts for about three and a half months till March 30, 2012.

In order to provide information on private columbaria made known to the relevant Government departments to the public in a more systematic manner and help the public make informed choices when purchasing niches before the introduction of the licensing scheme, the Development Bureau (DEVB) published in December 2010 relevant land/lease (user restrictions) and town planning information on the private columbaria made known to the Lands Department (LandsD) and/or Planning Department (PlanD), and which the departments had reason to believe are operating as columbaria. The information has been uploaded to the website of DEVB and will be updated quarterly, with the latest edition published on December 30, 2011. In addition, we have strengthened consumer education, through channels such as Announcements in the Public Interest (APIs), on the risks of choosing niches from private columbaria.

The relevant Government departments will continue to handle the matters, enquiries and complaints relating to private columbaria and take enforcement action against private columbaria found in breach of the relevant legislation and Government requirements, in accordance with their respective mandate and relevant legislation and administrative measures. My reply to the six parts of the question is as follows:

(a) The Information on Private Columbaria (the Information) published by the Government mainly covers planning and land information derived from the past applications for planning permission or complaint cases. It does not include information on the prices of niches. Planning permissions given in the early years normally did not include information on the number of niches. The supply and prices of private columbarium niches depend on their market demand and supply, their location and after-sales services. Currently, there are established channels and procedures for private columbaria to apply to the departments or organisations concerned for regularisation of their operation (e.g. applying for the relevant planning permission and/or lease modification, etc). If the columbaria have submitted planning applications or obtained planning permission, the status of application or the number of niches under application or already approved (if any) will be included in the Information. Depending on the circumstances of each case, the number of niches that may be provided under the land leases will also be included.

Among the private columbaria in Part B of the Information, 21 are applying to the LandsD for regularisation of existing columbarium use and/or the Town Planning Board for planning permission. The Government calls on the remaining Part B columbarium operators to submit their applications for regularisation as soon as possible.

(b) In the past three years (i.e. 2009 to 2011), PlanD received 177 complaints against private columbaria, involving 40 cases. Among them, 26 cases were found to be in breach of the Town Planning Ordinance (Cap. 131). 23 of these breach cases are now included in Part B of the Information published by DEVB. Regarding the three breach cases that have not been included in Part B of the Information, two have ceased operation whereas for the remaining one, the person in charge of the monastery concerned argues that columbarium niches are provided only for private use and not for public sale. LandsD also received 592 complaints against private columbaria, involving 97 cases. Among them, 43 cases found to have breached the land leases or/and have illegally occupied Government land have been included in Part B of the Information published by DEVB.

The complaints received by PlanD and LandsD as well as cases found to have breached the Town Planning Ordinance, land leases or/and have illegally occupied Government land may include overlapping cases.

(c) PlanD points out that under the Town Planning Ordinance, the Planning Authority may only take enforcement action against unauthorised developments in the Development Permission Areas (DPAs) (i.e. rural New Territories). PlanD investigates each suspected unauthorised columbarium case within DPAs under the Ordinance. If there is sufficient evidence, the Planning Authority will serve Enforcement Notice on the concerned party requiring discontinuance of the unauthorised development. Non-compliance with the Notice is subject to prosecution.

(d) LandsD points out that Hong Kong has a total land area of about 110 441 hectares. Given that the areas and uses of the land are extensive, it is not possible for the LandsD and the District Land Offices (DLOs) concerned to conduct regular inspection of all land. However, upon receipt of a complaint or referral in respect of land use, the DLOs concerned will deploy their staff to carry out on-site inspections. Legal advice will be sought in light of the actual circumstances and follow-up action taken at different stages as appropriate.

If the DLO concerned finds that illegal occupation of unleased land (Government land) for columbarium use could be substantiated, it will post a notice under section 6(1) of the Land (Miscellaneous Provisions) Ordinance (Cap. 28), requiring the illegal occupation of the land to cease within a specified period. If the occupant fails to cease illegal occupation of the land within the specified period or fails to apply or is unsuccessful in applying for regularisation of the use of the land being illegally occupied, the DLO concerned will consider taking further action after seeking legal advice and prosecution is not precluded. If a landowner operates a columbarium on leased land (private land), constituting a contravention of the lease conditions, the DLO concerned will take lease enforcement action such as issuance of warning letters, and eventual re-entering the concerned lot is not precluded. In taking the land control action on Government land or lease enforcement action on private land, the DLO concerned will normally consider the actual circumstances of the land involved, such as whether there is storage of cremains and the quantity, etc. If there is storage of cremains, the occupant/owner of the land in question will be given a specified period of time to make arrangements for relocation of the cremains and related matters.

During the consultation, some views we received suggested that the Government should provide assistance to consumers who had suffered losses from purchasing niches of unauthorised private columbaria. However, some views expressed concern that such practice might in a way encourage the development of unauthorised columbaria since relevant operators might not be held responsible for their misconduct. In the event that displacement of cremains happens as a result of enforcement actions against a private columbarium, it would be the responsibility of the operator of the private columbarium concerned to liaise with the descendents concerned on the proper handling of interred cremains, including exerting all reasonable effort to get in touch with the descendents, and sustaining such effort over a period of time while keeping the interred cremains intact. Currently, members of the public can pursue their claims under the general consumer protection regime or through private law remedies (such as the law of contract) if they consider that providers of columbarium niches are in breach of the sale and purchase contracts. The Commerce and Economic Development Bureau is currently drafting a Bill to introduce offences against commonly seen unfair trade practices, including the practices of false or misleading representation and inability to supply the products contracted for at the time of accepting advanced payment. Under exceptional circumstances, the relevant authority may remove the cremains and deposit them at a public facility as a transitional measure.

(e) and (f) Apart from the Information and APIs, we have also worked with the Consumer Council on other public education fronts. In April 2010, the Consumer Council published a topic report on private columbaria in its monthly magazine CHOICE, covering a detailed guide to the two-step checkout(*) for consumers' reference. In January 2011, the Consumer Council further published in CHOICE useful tips for purchasing private columbarium niches. Through the publication of the Information, members of the public are made aware that the columbaria in Part A are compliant with the user restrictions in the land leases and town planning requirements and are not illegally occupying Government land, while the columbaria in Part B have yet to comply with the relevant requirements for inclusion in Part A. This helps the public make informed choices when purchasing niches.

Note:

(*) First and foremost, consumers should check if the operation of the private columbarium concerned is in compliance with the relevant requirements on planning, building design and building standards. Under the existing Town Planning Ordinance, a columbarium must conform to the requirements of the land use zoning as specified in the statutory Outline Zoning Plan for the site concerned. Secondly, the owners of the land on which the private columbarium is situated are required to ensure that the use of the land for that purpose is in compliance with all the land lease conditions. Consumers can obtain information on the permitted uses specified in the land lease by conducting a land search at the Land Registry. Consumers may also seek professional advice where necessary.


Ends/Wednesday, February 15, 2012
Issued at HKT 17:49

NNNN