Cex had from Hausand of 16/1/36
FINANCE COMMITTEE'S REPORT.
THE COLONIAL SECRETARY, by command of H.E. The Govern, laid upon the table the reports of the Finance Committee, Nos. 1 and 18 of 5th and 27th December, 1935, respectively, and moved that they be adopted.
to.
THE COLONIAL TREASURER seconded, and this was agreed
8
PUBLIC RECLAMATION VALIDATION AND CLAUSES ORDINANCE, 1936.
THE ATTORNEY GENERAL moved the first reading of a Bill intituled "An Ordinance to validate certain undertakings which have i been constructed or commenced over and upon unleased Crown foreshore and sea bed; and to enact certain general provisions which shall be deemed incorporated, unless expressly varied or excepted, in future Ordinances authorising reclamation or other works of a public nature over and upon such foreshore and sea bed." He said: The long title of this Bill really describes sufficiently, I think, its scope and object, but as this Bill deals with a subject which has engaged
the attention of the Government, the Chamber of Commerce and other institutions over a period of five years I have added to it a Memorandum of Objects and Reasons which is rather longer than usual, and which explains the origin of the various clauses.
THE COLONIAL SECRETARY seconded, and the Bill was read a first time.
Objects and Reasons.
The "Objects and Reasons" for the Bill were stated as follows:-
1. It is a recognised principle of English law that owners of land may be required by the Legislature to surrender some or all of the rights they possess in or over their land for purposes of public utility. It is an equally recognised principle that (save in certain exceptional cases of emergency with which we are not now concerned) it is unjust to require that surrender without making provision for due compensation to those whose private rights are affected. When the land itself has to be surrendered it is said to be compulsorily taken or purchased; but if some only of the rights in or over the land are required to be given up the land is commonly said to be injuriously affected.
2. In England the necessary authority to take or injuriously affect land is obtained from Parliament, either directly by an Act passed for the purpose, or indirectly under Acts containing general powers which may be exercised for particular purposes and upon certain conditions. The former class of Act usually specifies the land which may be taken and limits the time within which the acquisition must take place. The latter class contains no such limitations but in many cases some form of order is required before the powers can be put into force.
3. In this Colony both the direct and the indirect have been adopted in the past. Examples of such local Legislation are the Praya Reclamation Ordinance, 1889, The Praya East Reclamation Ordinance, 1921, the Harbour of Refuge Ordinance, 1909, the Foreshores and Sea Bed Ordinances of 1901 and 1932, and the Crown Lands Resumption Ordinance, 1900. Under some of these Ordinances, subject to the payment of compensation, private land can be taken for public purposes. Under others while the land itself is not taken provision is made for compensation where it has been injuriously affected by the loss of access to the sea where leases of foreshore and sea bed are granted.
4. But it seems that, unless the land itself is required or unless a Crown Lease of property is to be granted, our Legislature has not so far provided for the cases where private land is not required but may nevertheless be injuriously affected by a reclamation or
HONG KONG LEGISLATIVE COUNCIL.
21 END
other improvement which is to be retained for public use as a roadway, pier approach or other work which the Government undertakes in the interests of the Colony generally.
5. The works set out in the Schedule to this Bill belong to this category. They have been undertaken over and upon unleased Crown foreshores and sea bed without complaint but at the same time without legislative authority, other than that which is contained in the Annual Appropriation Ordinances which have justified expenditure on the undertakings but have contained no provision for the extinction of rights or for compensation where compensation is due.
6. The possibility of enacting a Bill which while validating past works would give the Government general power to undertake similar works in the future has been carefully explored and been found open to serious objection. It has therefore been abandoned.
7. The objects of this Bill are different. They are first to validate the extinction of any public or private rights which might be considered to subsist in the works enumerated in the Schedule, which, as has been stated, have been undertaken without complaint; and, secondly, to make provision for a scheme of notice and compensation which is to be applied in the case of future Ordinances authorising undertakings of this nature.
8. Clause 1 is the Short title.
9. Clause 2 validates the undertakings enumerated in the Schedule.
10. Clause 3 applies the provisions of clause 10 to the Pipe Lines and other undertakings set out in the Schedule.
11. Clause 4, which is derived from section 1 of the Lands Clauses Consolidation Act, 1845, enacts that the clauses which follow
to shall, unless expressly excepted or varied, be deemed be incorporated in any future Ordinance authorising any undertaking for reclamation or other works of a public nature over and upon unleased Crown foreshore and sea bed provisionally and subject to the definitive approval of the Governor in Council.
12. Clause 5 deals with the notification of the authorised undertaking, the hearing of objections, the publication of definitive approval and the commencement of the execution of the work. It may be compared with section 2 of Ordinance No. 26 of 1932.
13. Clause 6 provides for the extinction of rights upon the publication of the definitive approval. It is derived from section 8 of Ordinance No. 39 of 1909.
HONG KONG LEGISLATIVE COUNCIL.
14. Clause 7 makes provision for the payment of compensation where private rights are affected. It is derived from section 12 of Ordinance No. 39 of 1909 and from section 2 of Ordinance No. 26 of 1932.
15. Clause 8 deals with the powers of the judge in claims for compensation and is identical with section 13 of Ordinance No. 39 of 1909.
16. Clause 9 makes it clear that the authorising Ordinance will not create new rights; and that to obtain compensation under the clauses of this Ordinance claimants must prove that enforceable rights existed independently of either Ordinance.
It
17. Clause 10 (1) is derived from section 74 of the Harbours, Docks and Piers Clauses Act, 1847, (10 and 11 Vict. c. 27). is designed for the protection of the undertakings authorised or validated by Ordinance and is considered necessary especially for the protection of the Cross-Harbour Pipe Lines. The proviso to section 74 of the Act of 1847 is omitted as pilotage is not compulsory in the Colony (cf. Ordinance No. 11 of 1930, ss. 11 and 28).
18. Clause 10 (2) provides for claims and other proceedings by the Government under this section being brought in the name of the Attorney General (cf. Ordinance No. 10 of 1899, s. 17 (7) ).
19. Clause 10 (3) makes it clear that proceedings in rem cannot be taken against a British or foreign warship (see Hailsham's Halsbury Vol. I paragraphs 121 and 122).
20. Clause 11 saves the rights of the Crown and is derived from section 9 of Ordinance No. 39 of 1909.
21. Clause 12 saves the rights of the Admiralty in respect of the Royal Naval Yard area (v. Despatch No. 130 from the Secretary of State dated 7.5.32),
22. The Bill in its present form (except that the items in the Schedule relating to the Refuse-boat Pier and Livestock Landing at Ma Tau Kok Road and to the Refuse-boat Pier at Kweilin Street now listed as completed were then listed as in progress) was submitted to the Secretary of State, who has approved of proceeding with its enactment.