Replies to LegCo questions

LCQ5: Private columbaria

Following is a question by the Hon Leung Che-cheung and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (April 16):

Question:

It is learnt that in 1993, the Town Planning Board rejected the application by a developer for amending the planned use of a site at Sheung Tsuen in Pat Heung of Yuen Long for the construction of columbarium facilities, but the developer concerned thereafter has not demolished the three unauthorised columbaria built on the site which were near completion. Over the years, the villagers of Sheung Tsuen have been requesting the relevant government departments to take law enforcement actions. However, the Buildings Department replied that those unauthorised building works (UBWs) were not of the type accorded high priority for clearance and therefore it would not take any action. Such UBWs have been erected for over 20 years. Recently, some villagers have found that some people are carrying out large-scale construction works on the site concerned with the intention of resuming construction of the columbarium facilities. In its reply to District Council members of the district, the Lands Department said that carrying out earthmoving activities and surveying works on the site concerned did not breach the land lease conditions. In this connection, will the Government inform this Council:

(1) of the existing policies and relevant measures for handling unauthorised columbaria; whether it has set a response time target from receipt of reports of such cases to conclusion of cases;

(2) why it has yet to take law enforcement action against the aforesaid UBWs; whether it has assessed if the law enforcement work by the government departments concerned is ineffective;

(3) of the information on other cases of unauthorised columbarium which are of the same situation as the aforesaid case, and the details of the law enforcement actions taken by the Government in respect of such cases in the past three years; and

(4) given that the Government has in recent years proactively handled the problems of UBWs on private lands in rural areas, and that if the owners concerned fail to comply with the removal orders by the deadline, the Government would appoint contractors to carry out the necessary works on behalf of the owners and then recover the costs from them, why the aforesaid case has been allowed to be held up for over 20 years without any removal action taken; regarding the differences in the Government's approaches and time needed for handling the aforesaid case and other cases of UBWs on private lands in rural areas, whether it has assessed if there have been inconsistencies in the law enforcement actions taken, thus giving rise to an unfair situation?

Reply:

President,

The operation of all trades in Hong Kong, including the columbarium trade, must be in compliance with the statutory or other requirements of the Government. In taking actions against any unauthorised private columbaria, the relevant departments will exercise the powers conferred upon them by the land lease, the Town Planning Ordinance (Cap. 131) and the Buildings Ordinance (Cap. 123), in accordance with the established procedures.

In order to help the public make informed choices before the licensing scheme is introduced, the Development Bureau (DEVB) has published and updated on a quarterly basis a list containing the relevant land/lease (user restrictions) and planning information relating to those private columbaria that are made known to the Lands Department (LandsD) and/or Planning Department (PlanD) and which the departments have reasons to believe are operating as private columbaria. Moreover, consumer education has also been enhanced. Announcements in the Public Interest on television and radio were launched in the past two years, and a pamphlet has also been published on the Government's websites and distributed through various channels since mid-2011, giving consumer advice to remind the public of areas that they should watch out for when purchasing niches from private columbaria. Before patronising private columbaria, members of the public are reminded of the importance of obtaining from the operators full and complete information in order to check whether the respective columbarium is compliant with all relevant statutory and Government requirements, including town planning requirements and land leases. They are also advised to ascertain from the operators of private columbaria how they would look after the interest of their customers, such as how to handle the interred niches properly and whether and how they would refund or compensate their customers should the respective private columbarium be prohibited from operating or cease operation. Where necessary, consumers should seek independent legal advice on their rights.

Based on information provided by DEVB, I set out below our reply to the various parts of the question raised by the member.

(1) Relevant departments will take enforcement actions against unauthorised aspects of private columbaria under their respective mandate and relevant legislation and administrative measures.

Town planning

The Town Planning Ordinance (Cap. 131) confers powers on the Planning Authority to undertake enforcement actions against unauthorised developments in areas covered by the Development Permission Areas. In addition, enforcement actions against the relevant land use may be handled by virtue of land lease conditions, building plans and various licence systems, where these are applicable.

Land leases/Land Control

If the columbarium use is confirmed to be in breach of the land lease, the LandsD will take appropriate lease enforcement actions. Such actions may include issuing advisory/warning letters to the lessee, and the ultimate re-entry of the land is not precluded. Besides, if the case involves unlawful occupation of government land for columbarium use, LandsD will post a notice under Section 6(1) of the Land (Miscellaneous Provisions) Ordinance (Cap. 28), requiring the cessation of occupation of government land before a specified date. Should the unlawful occupation persist after expiry of the specified period, LandsD may, after seeking legal advice, take further land control action including prosecution. According to LandsD, in taking such lease enforcement and land control actions, LandsD will normally consider the actual circumstances of the land involved, including whether there is storage of cremains and the quantity etc. If storage of cremains is found, the land owners/occupiers will be given a specified period of time to make arrangements for the relocation of the cremains and other related matters.

Building safety

On construction, those columbaria which are in breach of the Buildings Ordinance (Cap. 123) or its subsidiary legislation would be regarded as unauthorised building works (UBWs). The Buildings Authority would, in accordance with the existing enforcement policy against UBWs, give priority to taking enforcement actions against items constituting obvious hazard or imminent danger to life or property, newly constructed items and items that constitute a serious health or environmental nuisance. Besides, since April 2011, the Building Authority has revised its enforcement policy against UBWs by extending the coverage of actionable UBW.

(2) The enforcement actions taken by the relevant departments on the above case are as follows:

Planning Department

The subject site falls within an area zoned "Agriculture" on the approved Shek Kong Outline Zoning Plan (OZP) No. S/YL-SK/9 (see Plan 1). "Columbarium" use is not permitted within this zone. The Central Enforcement and Prosecution Section of the PlanD has investigated the suspected columbarium use of the site since 1991. More than 10 site inspections were conducted, which revealed that the site was vacant, with 3 vacant concrete structures and some stone statues. Up to the latest site inspection conducted on March 11, 2014, no columbarium use was found on the site. As there is insufficient evidence to confirm any columbarium use at the site or any other unauthorised development under the Town Planning Ordinance (Cap. 131), no enforcement action has been taken. Nevertheless, PlanD will keep monitoring the site.

Lands Department

The Yuen Long District Lands Office (DLO) received complaint against the storage of human ashes inside the three buildings located at Lot No. 1410 S.B RP in D.D. 114. After the investigation by DLO (with the most recent investigation conducted in end 2013), no columbarium use or resumption of construction works was found. However, as the concerned lot is an old scheduled graveyard with house entitlement, the area of the three buildings has exceeded the built-over area allowed under the land lease thus breaching the lease conditions. DLO commenced lease enforcement actions since 2009 by issuing warning letter(s) to the owner of the concerned lot requiring the land owner to rectify the breach before a specified time. As the breach was not purged upon the expiration of the specified time, DLO registered the warning letter(s) against the subject lot at the Lands Registry in late 2009, in order to inform the public of the breach. Separately, LandsD had referred the case to the Buildings Department (BD) to follow up on the UBWs.

DLO is seeking legal advice with respect to the three buildings to consider whether it is appropriate to take further lease enforcement actions, including re-entry.

Buildings Department

According to BD's record, there are three 3-storey existing building structures located at the concerned area at Sheung Tsuen, Pat Heung, Yuen Long, which exceed the criteria as stipulated in the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121). As there is no approval record of such building structures in BD, these existing building structures belong to UBWs. However, no obvious danger was noted for these building structures during the inspection. According to the current enforcement policy against UBWs, the above UBWs do not fall within the types against which BD has accorded priority for taking immediate enforcement action. As such, BD contemplates no further action.

(3) As set out before, DEVB has published on its website (www.devb.gov.hk) (and updated regularly) information on land/lease (user restriction) and town planning on the private columbaria made known to LandsD and PlanD. There are two parts to the information:

Part A includes private columbaria which are compliant with the user restrictions in the land leases and the statutory town planning requirements and are not illegally occupying Government land; and

Part B includes other private columbaria made known to the PlanD and the LandsD that do not fall under Part A (i.e. those which are pending checking for compliance with the relevant requirements for inclusion in Part A; or have been confirmed not compliant with the user restrictions in the land leases and/or statutory town planning requirements and/or are illegally occupying Government land).

The information on enforcement actions against private columbaria in the past three years is given below:

Year         No. of inspections/         No. of non- compliance
                 visits conducted(i)          cases detected
2011           907                               30
2012           804                               43
2013           617                               47

Year         No. of enforcement
                actions taken (ii)
2011           31
2012           59
2013           35

Note:

(i) Figures include site inspections of both confirmed and suspected cases arising from complaints, referrals, patrols, visits (as appropriate) by BD (figure only available for 2013), Food and Environmental Hygiene Department, LandsD and PlanD.

(ii) Figures include the issuance of warning letters, orders, enforcement notices and the instigation of prosecution actions, etc.

(4) Generally speaking, BD will consider arranging Buildings Department Contractor action to remove UBWs and recovering the cost incurred from the owner for special cases, such as UBWs with imminent danger or non-compliance case after repeated prosecution in the default of the owner. According to the current enforcement policy against UBWs, the above UBWs do not fall within the types against which BD has accorded priority for taking immediate enforcement action. As such, BD contemplates no further action.

Ends/Wednesday, April 16, 2014
Issued at HKT 18:38

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LCQ5 Plan 1