Sewage Tunnels (Statutory Easements) Ordinance


Published: 1997-07-01

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Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 1

Chapter: 438 SEWAGE TUNNELS (STATUTORY EASEMENTS)
ORDINANCE

Gazette Number Version Date


Long title 29 of 1998 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 29 of 1998 s. 84

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]


(Originally 74 of 1993)

(Enacted 1993)

Section: 1 Short title 30/06/1997


This Ordinance may be cited as the Sewage Tunnels (Statutory Easements) Ordinance.
(Enacted 1993)


Section: 2 Interpretation L.N. 130 of 2007 01/07/2007


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


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 Lands Registry established under the Land Registration Ordinance (Cap
128); (Amended 20 of 2002 s. 5)

"Secretary" (局長) means the Secretary for the Environment; (Amended 61 of 1999 s. 3; L.N. 330 of 1999; L.N. 106
of 2002; L.N. 130 of 2007)

"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.

(Enacted 1993)

Section: 3 Plans relating to sewage tunnels 30/06/1997


Where the Government proposes to construct any sewage tunnel, the Secretary shall cause to be prepared a plan-
(a) showing the route of the proposed tunnel; and
(b) identifying the land situated on the route of the proposed tunnel.

(Enacted 1993)

Section: 4 Publication of plans 29 of 1998 01/07/1997


Remarks:



Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 2

Adaptation amendments retroactively made - see 29 of 1998 s. 105


(1) 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).

(2) A notice of a plan shall-
(a) 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;
(b) describe the land situated on the route of the proposed tunnel;
(c) state the proposed minimum depth below the surface of the land at which the tunnel will lie;
(d) 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;

(e) 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)

(Enacted 1993)

Section: 5 Objections 30/06/1997


(1) 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.

(2) 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).

(3) A notice of objection shall-
(a) describe the estate or interest of the objector in the land; and
(b) state the reasons for his objection.

(4) 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.

(Enacted 1993)

Section: 6 Procedure if no objection made 30/06/1997


(1) 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.

(2) 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.

(Enacted 1993)

Section: 7 Procedure if objection made 61 of 1999 01/07/1997


Expanded Cross Reference:

3, 4, 5, 6



Remarks:
Adaptation amendments retroactively made - see 61 of 1999 s. 3


(1) Where at the expiry of the time for the making of an objection under section 5 an objection has been



Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 3

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.

(2) 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.

(3) 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.

(4) 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)
(Enacted 1993)


Section: 8 Orders under section 6 or 7 30/06/1997


(1) 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.

(2) 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.

(3) 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.

(Enacted 1993)

Section: 9 Deposit of plan and registration of order 30/06/1997


Following the making of an order under section 6 or 7, the Secretary shall-
(a) deposit in the Land Registry a copy of the plan to which the order refers;
(b) 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).

(Enacted 1993)

Section: 10 Statutory easements 29 of 1998 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 29 of 1998 s. 105


(1) 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-

(a) to place and keep any sewage tunnel under such land and to transfer sewage through such tunnel; and
(b) to carry out tunnel works required for the purposes of paragraph (a).

(2) 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.

(3) 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)
(Enacted 1993)





Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 4

Section: 11 Rectification of plan 29 of 1998; 61 of
1999

01/07/1997



Remarks:
Adaptation amendments retroactively made - see 29 of 1998 s. 105; 61 of 1999 s. 3


(1) 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)

(2) 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.

(3) 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.

(4) 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)

(5) 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)

(Enacted 1993)

Section: 12 Compensation 25 of 1998; 61 of

1999
01/07/1997



Remarks:
Adaptation amendments retroactively made - see 25 of 1998 s. 2; 61 of 1999 s. 3


(1) 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)

(2) For the avoidance of doubt, "loss or damage as a result of the creation of rights under this Ordinance" in
subsection (1) includes, where such rights have been created, any loss or damage as a result of a decision of the
Building Authority under section 17A of the Buildings Ordinance (Cap 123).

(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-

(a) 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;

(b) 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)

(c) in any other case, within 12 months after the date on which the loss or damage is discovered.
(4) No compensation shall be payable for any loss as is referred to in subsection (3)(b) in respect of any land-

(a) 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

(b) after the expiration of 10 years from completion of the construction of the tunnel under such land.
(5) A notice of a claim for compensation under this section shall contain particulars of-

(a) the loss or damage sustained;
(b) the amount of the claim; and
(c) how the amount claimed is calculated.



Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 5

(6) 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.

(7) 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-

(a) admits the entire claim; or
(b) rejects the entire claim; or
(c) admits a specified part of the claim and rejects the remainder,

and shall briefly state his reasons for rejection.
(8) 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-
(a) 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)

(b) 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

(c) 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.

(9) 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.

(10) 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.

(11) 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-

(a) for the period from the date on which a claim is made under this Ordinance to the date of payment;
(b) at the rate payable on judgment debts pursuant to section 49 of the High Court Ordinance (Cap 4).

(Amended 25 of 1998 s. 2)
(12) All sums of money agreed or determined as compensation, and any interest payable, under this Ordinance

shall be a charge on the general revenue.
(13) 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)

Section: 13 Claims out of time 61 of 1999 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 61 of 1999 s. 3


(1) 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.

(2) 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.

(3) Notice of an application under subsection (2) shall be given to the Director of Lands by the applicant.
(4) 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)



Cap 438 - SEWAGE TUNNELS (STATUTORY EASEMENTS) ORDINANCE 6

(5) 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).

(Enacted 1993)

Section: 14 Offence to obstruct exercise of right of Government 29 of 1998 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 29 of 1998 s. 105


(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 of $10000 and to imprisonment for 6 months.

(2) For the purpose of subsection (1) "notice" (通知) means written notice given-
(a) not less than 1 day before the earliest time specified in the notice;
(b) to the defendant personally.

(3) 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)
(Enacted 1993)


Section: 15 (Omitted as spent) 30/06/1997


(Enacted 1993)

Section: 16 (Omitted as spent) 30/06/1997


(Enacted 1993)

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