TNAG-0508-FCO40-573-Construction-of-underground-railway-system-in-Hong-Kong-1974 — Page 12

CONFIDENTIAL

機密

XCC(74)45

· 6 ·

Schedule enables a property owner to claim for loss sustained on account of withdrawal of approval or consent only. This raises the question as to whether provision should be made to enable owners of property to claim for refusal of approval or consent or the imposition of a condition on development.

15

The consensus within the Mass Transit Railway Provisional Authority is that claim for compensation arising from refusal of approval or consent should not be entertained. This is in line with present practice under the Town Planning Ordinance (Chapter 131) and the Buildings Ordinance (Chapter 123), both of which can result in the development of land being restricted without creating a right to compensation. To depart from this practice would expose the Government to a wide range of large claims based on losses of potential income not only under this bill but ultimately also, as an extension of such a principle, under all other building and planning legislation. On the other hand, the Buildings Ordinance (Chapter 123) does not provide for withdrawal of approval to building plans or of consent to the commencement of building works once this has been given, To this extent clause 15 of the bill represents a departure from present practice, a departure made necessary by the need to stop building works which are incompatible with the railway or to prevent them from starting. In circumstances where actual loss has been sustained and substantiated, and where such loss can be shown to be attributable to the withdrawal of approval, it is considered that it would be fair and reasonable to pay compensation.

16

In practice, the Director of Public Works will take all reasonable steps outside of the provisions of the bill to allow private development to proceed unless the development is incompatible with the Mass Transit Railway. He would negotiate with owners of property whose approved building plans have been frustrated by withdrawal or modification of approval in three possible ways:

(a) where the approved development had been substantially

frustrated by the Mass Transit Railway, the property could be acquired by surrender of title. The owner would then receive the value which the land had on the open market prior to withdrawal of approval. This practice would be consistent with the spirit of section 12(d) of the Crown Lands Resumption Ordinance (Chapter 124);

(b) where the approved development had not been

substantially frustrated, development would be allowed to proceed and compensation, based on the reduction in the value of the property, paid;

CONFIDENTIAL

機密