An Ordinance to provide for the creation of easements and other rights over land in favour of the Government for the purpose of the construction, maintenance and operation of sewage tunnels; and for connected matters.
(Amended 29 of 1998 s. 84)
[5 November 1993]
(Format changes—E.R. 4 of 2021)
(Enacting provision omitted—E.R. 4 of 2021)
This Ordinance may be cited as the Sewage Tunnels (Statutory Easements) Ordinance.
In this Ordinance, unless the context otherwise requires—
land (土地) means leased land within the meaning of the Land (Miscellaneous Provisions) Ordinance (Cap. 28) or unleased land which is occupied in accordance with Part II of that Ordinance and includes land covered by water; (Amended 29 of 1998 s. 85) Land Registry (土地註冊處) means the Land Registry established under the Land Registration Ordinance (Cap. 128); (Amended 20 of 2002 s. 5) Secretary (局長) means the Secretary for Environment and Ecology; (Amended 61 of 1999 s. 3; L.N. 330 of 1999; L.N. 106 of 2002; L.N. 130 of 2007; L.N. 144 of 2022) sewage tunnel and tunnel (污水隧道) mean an underground tunnel and associated underground structures for the transfer of sewage; tunnel works (污水隧道工程) means the construction, operation, maintenance, repair or replacement of any sewage tunnel or any part of such tunnel, or the investigation or examination of such tunnel or of any land required for such tunnel.Where the Government proposes to construct any sewage tunnel, the Secretary shall cause to be prepared a plan—
showing the route of the proposed tunnel; and
identifying the land situated on the route of the proposed tunnel.
Upon completion of the preparation of a plan under section 3, the Secretary shall cause to be published in the Gazette in both the Chinese and English languages a notice of the plan containing the particulars specified in subsection (2).
A notice of a plan shall—
either be published together with a copy of the plan to which it relates, or state where and at what times the plan may be inspected;
describe the land situated on the route of the proposed tunnel;
state the proposed minimum depth below the surface of the land at which the tunnel will lie;
contain a statement to the effect that any person having an estate or interest evidenced in an instrument registered in the Land Registry in any land situated on the route of the proposed tunnel may object to the proposal under section 5 by lodging a notice in writing of his objection with the Director of Drainage Services within a period specified in the notice of the plan, being a period of not less than 2 months beginning on the date of publication of the notice of the plan;
indicate that certain easements and other rights may be created in favour of the Government over such land on the expiry of the period specified for the purpose of paragraph (d) if no objection has been lodged before that expiry. (Amended 29 of 1998 s. 105)
Subject to this section, any person who has an estate or interest evidenced in an instrument registered in the Land Registry in any land situated on the route of a proposed tunnel may object to the route or depth or both of the proposed tunnel.
An objection under this section shall be made by notice in writing delivered to the Director of Drainage Services at any time during the period beginning on the publication of the notice of the plan of the proposed tunnel and ending with the expiry of the time specified in that notice for the purpose of section 4(2)(d).
A notice of objection shall—
describe the estate or interest of the objector in the land; and
state the reasons for his objection.
A notice of objection delivered pursuant to subsection (2) may be amended or withdrawn in writing at any time before an order is made under section 6 or 7, and if withdrawn shall be treated for the purposes of those sections as not having been delivered.
Where the time for the making of an objection under section 5 has expired and no objection has been delivered to the Director of Drainage Services, the Secretary may order that section 10 shall apply in respect of any land identified in a plan prepared for the purposes of section 3 and described in the notice of the plan published under section 4.
The Secretary shall publish in the Gazette notice of any order made by him under this section, and such notice shall describe the land to which the order applies.
Where at the expiry of the time for the making of an objection under section 5 an objection has been delivered under that section, the Chief Executive in Council shall consider such objection and may if he thinks fit order that section 10 shall apply in respect of any land identified in a plan prepared for the purposes of section 3 and described in the notice of the plan published under section 4.
Where an order is made under subsection (1), the plan relating to the proposed tunnel shall be subject to such amendment as the Chief Executive in Council thinks fit.
Notice of an order made by the Chief Executive in Council under this section shall be published in the Gazette and shall describe the land to which the order applies.
Where a plan is amended by the Chief Executive in Council pursuant to subsection (2) such that the route of the proposed tunnel passes through land not previously identified in the plan as land situated on the route of the proposed tunnel, sections 3 to 6 and this section shall apply in respect of such amended part of the plan.
(Amended 61 of 1999 s. 3)
Notice of an order made under section 6 or 7 and published in the Gazette pursuant to those sections shall include a statement to the effect that claims for compensation under section 12 for loss or damage resulting from the creation or exercise of rights under this Ordinance may be submitted in writing to the Director of Lands within the period specified in that section and, if the Director of Lands rejects such claims in whole or in part, to the Lands Tribunal for final determination.
An order made under section 6 or 7 and of which notice has been published in the Gazette pursuant to those sections shall take effect on the expiration of 14 days after the date of such publication.
For the purposes of section 2 of the Land Registration Ordinance (Cap. 128), an order made under section 6 or 7 and applying in respect of any land shall be deemed to be an instrument by which such land may be affected, and shall be capable of being entered and registered as such in the Land Registry.
Following the making of an order under section 6 or 7, the Secretary shall—
deposit in the Land Registry a copy of the plan to which the order refers;
as soon as practicable, and in any event not later than 14 days after the making of the order, deliver the order or a certified copy of the order to the Land Registry for registration under the Land Registration Ordinance (Cap. 128).
Subject to this Ordinance, the Government may exercise from time to time all or any of the following rights over any land identified in an order made under section 6 or 7, that is to say the right—
to place and keep any sewage tunnel under such land and to transfer sewage through such tunnel; and
to carry out tunnel works required for the purposes of paragraph (a).
Rights shall only be exercisable under subsection (1) where there is a cover to the sewage tunnel or tunnel works, as the case may be, of not less than 30 metres of bedrock.
The rights conferred by this section on the Government may be exercised by any employee, servant or agent of the Government authorized for the purpose or by any other person authorized on the Government’s behalf for the purpose.
(Amended 29 of 1998 s. 105)
The Chief Executive may, at the request in writing of the Secretary, direct that any plan referred to in an order made under section 6 or 7 shall be rectified so as to accord with the route of a tunnel as constructed, and any such direction together with any document or material containing the rectification shall be deposited in the Land Registry and annexed to the copy of the plan deposited under section 9. (Amended 61 of 1999 s. 3)
Where any document or material evidencing the rectification of a plan is deposited in the Land Registry under subsection (1), the Secretary may by notice published in the Gazette order that any reference in this Ordinance or any order under this Ordinance to a plan shall be construed as including a reference to a plan as so rectified.
Section 9 shall apply in relation to the delivery for registration of an order made under subsection (2) as it applies in relation to the delivery for registration of an order made under section 6 or 7.
Where a direction made by the Chief Executive under subsection (1) for the rectification of any plan identifies land situated on the route of a tunnel as constructed, being land not previously identified in the plan for the purposes of section 3, the Secretary may by notice published in the Gazette order that any reference in this Ordinance to land identified in an order made under section 6 or 7 shall be construed as including a reference to land so identified in the direction. (Amended 61 of 1999 s. 3)
Subject to section 12, where an order has been made under subsection (4), no action shall lie in respect of any act done by the Government prior to the making of the order in the purported exercise of rights conferred under section 10 which would, if done subsequent to the making of the order, be lawfully and validly done. (Amended 29 of 1998 s. 105)
Subject to this section, the Government shall be liable to pay compensation to any person who has suffered loss or damage to land (including any diminution in the value of the land) or property situated on land as a result of the creation of rights, or the exercise of rights created, under this Ordinance. (Amended 61 of 1999 s. 3)
A claim for compensation under this section shall be made by delivering notice of the claim in writing to the Director of Lands within the following period, that is—
where the claim is for compensation for diminution in the value of the land arising from the creation of an easement or right, within 12 months after the date on which the easement or right is created;
where the claim is for loss sustained on account of any decision by the Building Authority under section 17A of the Buildings Ordinance (Cap. 123), being loss not foreseen and not reasonably foreseeable at the expiry of the period referred to in paragraph (a), within 12 months after the date of the decision; (Amended L.N. 210 of 1994)
in any other case, within 12 months after the date on which the loss or damage is discovered.
No compensation shall be payable for any loss as is referred to in subsection (3)(b) in respect of any land—
where compensation has previously been paid under this section for any loss as is referred in subsection (3)(b) in respect of such land; or
after the expiration of 10 years from completion of the construction of the tunnel under such land.
A notice of a claim for compensation under this section shall contain particulars of—
the loss or damage sustained;
the amount of the claim; and
how the amount claimed is calculated.
The Director of Lands may request any person claiming compensation under this section to furnish further particulars of and in support of his claim or any item of his claim, and if any such particulars are not furnished to the Director within a period of 1 month from the date of the notice, or within such further period as the Director may in writing allow, the claim or the item of the claim concerning which the particulars are requested shall be deemed to be rejected and subsection (7) shall not apply to such claim or item of the claim.
The Director of Lands shall, within 3 months of the service of a claim on him or, if he has requested further particulars under subsection (6) within 3 months of the day on which the particulars are furnished in accordance with that subsection, notify the claimant in writing that he—
admits the entire claim; or
rejects the entire claim; or
admits a specified part of the claim and rejects the remainder,
and shall briefly state his reasons for rejection.
Where the Director of Lands has rejected a claim or any part of a claim under subsection (7), or where a claim or any part of a claim is deemed to have been rejected under subsection (6), the Director may—
by notice in writing offer to the claimant such sum, including costs as agreed, as the Government is willing to pay in full and final settlement of the claim or any part of the claim; (Amended 61 of 1999 s. 3)
commence proceedings in the Lands Tribunal, to have the claim or any part of the claim in respect of which no offer is made heard and determined by it in accordance with this Ordinance; or
commence such proceedings in the Lands Tribunal where any offer under paragraph (a) is not accepted by the claimant within 1 month of the date of the offer.
If, after the expiry of 6 months from the receipt of a claim by the Director of Lands, the claim has not been settled by agreement, either the claimant or the Director may commence proceedings in the Lands Tribunal to have the claim, or so much of the claim as is still then in dispute, heard and determined by it under this Ordinance.
If any claimant is not satisfied with the decision of the Director of Lands to reject the claim or any part of the claim, he may, not later than 1 month after the Director has notified him of his decision, submit the claim to the Lands Tribunal for determination in accordance with this Ordinance.
Interest shall be payable on any amount of compensation payable under this Ordinance in respect of loss or damage as is referred to in subsection (3)(b) or (c), and such interest shall be payable—
for the period from the date on which a claim is made under this Ordinance to the date of payment;
at the rate payable on judgment debts pursuant to section 49 of the High Court Ordinance (Cap. 4). (Amended 25 of 1998 s. 2)
All sums of money agreed or determined as compensation, and any interest payable, under this Ordinance shall be a charge on the general revenue.
No action, claim or proceedings shall lie or be brought against the Government or any other person to recover damages or compensation for loss or damage to land or any property situated on land as a result of the creation of rights, or the exercise of rights created, under this Ordinance except in pursuance of the rights to compensation provided for in this section. (Amended 61 of 1999 s. 3)
Subject to subsection (2), if notice of a claim is not delivered to the Director of Lands before the expiration of the period specified in section 12(3) in respect of that matter, the right to claim compensation for that matter shall be barred.
The period referred to in subsection (1) may, upon application made to the Lands Tribunal either before or after the expiry of that period, be extended in accordance with this section.
Notice of an application under subsection (2) shall be given to the Director of Lands by the applicant.
The Lands Tribunal may extend the period within which notice of a claim must be delivered to the Director of Lands if it considers that the delay in delivering notice of the claim was occasioned by mistake of fact or mistake of any matter of law (other than the relevant provision in section 12(3)) or by any other reasonable cause or that the Government is not materially prejudiced in the conduct of its case or otherwise by the delay. (Amended 61 of 1999 s. 3)
An extension may be granted by the Lands Tribunal under subsection (4) with or without conditions for such period as it thinks fit but not in any case exceeding 5 years from the expiration of the period referred to in subsection (1).
Any person who, having been given notice by the Government of its intention to exercise rights created under section 10 in respect of any land, wilfully obstructs or interferes with the lawful exercise of those rights at any time specified in the notice commits an offence and is liable to a fine at level 3 and to imprisonment for 6 months. (Amended E.R. 4 of 2021)
Nothing in this section shall be construed as imposing on the Government an obligation to give notice under this section prior to the exercise of any of the rights created under section 10.
(Amended 29 of 1998 s. 105)
(Omitted as spent—E.R. 4 of 2021)
(Omitted as spent—E.R. 4 of 2021)