LCQ16: Territory-wide survey on the distribution and use of brownfield sites
Following is a question by Dr the Hon Yiu Chung-yim and a written reply by the Acting Secretary for Development, Mr Eric Ma, in the Legislative Council today (February 8):
Currently, brownfield sites cover many different land uses and in general refer to deserted or damaged agricultural land in the rural New Territories that have been converted to other uses. It was reported in the press in October last year that the Government would, by making reference to the practice of conducting territory-wide surveys on squatter structures in 1982, conduct a freezing survey on the current use of brownfield sites, and formulate a set of policies on land resumption, compensation, resettlement, etc. The then Secretary for Development said in November last year that the Government would conduct a territory-wide survey on brownfield sites. Although it is mentioned in paragraph 121 of the Policy Address delivered last month that "moreover, the Planning Department will conduct a survey on the distribution and use of all brownfield sites in Hong Kong this year", the Government has so far not announced when the survey on brownfield sites would commence, nor has it taken any measures to freeze the areas of brownfield sites. There are comments that the Government being all talk and no action on the conduct of the survey on brownfield sites has allowed owners of agricultural lands time to turn their agricultural lands into brownfield sites before such survey commences, in the hope of receiving higher compensation calculated on the basis of brownfield sites, when the Government resumes the lands in future. In this connection, will the Government inform this Council:
(1) of the timetable for conducting the territory-wide survey on brownfield sites;
(2) when it will freeze the areas of brownfield sites; and
(3) of the policies in place to prevent owners of agricultural lands from turning their agricultural lands into brownfield sites in the hope of receiving higher compensation in future, thereby causing damages to the ecological environment of such lands?
First, I would like to clarify the differences in background of "squatters" and "brownfield sites", as well as the objectives of "freezing surveys".
Squatters generally refer to unauthorised structures erected on private agricultural land in breach of lease conditions or on government land in breach of the Land (Miscellaneous Provisions) Ordinance, which are in principle subject to enforcement actions or eradication in accordance with the relevant lease conditions and legislation. The Government conducted a Squatter Control Survey (SCS) in 1982. According to squatter control policy, structures assigned with squatter survey numbers remain illegal in nature and are only tolerated. A surveyed squatter structure is tolerated to remain on a temporary basis, provided the location, dimensions, building materials and use are the same as the 1982 SCS Record, until it has to be cleared for development, environmental improvement or safety reasons, or until it is phased out through natural wastage (e.g. when the structure is not occupied or ceases to exist).
Tolerance for surveyed squatters does not create any legal rights or interests or obligations, nor does it confer on any person the right to occupy land. Any extension, new erection, addition, change of use or alteration with materials that does not comply with the SCS Record is not allowed. A surveyed squatter structure with any extension, new erection, addition, change of use or alteration with materials that does not comply with the 1982 SCS Record will lose the status of a surveyed squatter structure. The Lands Department will cancel its SCS Record and take immediate enforcement action. Notably, the 1982 SCS is different in purposes and nature from "pre-clearance surveys" (also known as "freezing surveys") detailed below, which are conducted for the purpose of development programmes.
There is no formal or standard definition for "brownfield sites" at present. The term generally refers to agricultural or rural land in the New Territories (NT), predominantly privately owned, that is deserted and converted to uses such as container yards, vehicle parking, vehicle repair workshops, logistics operations, rural workshops, open storage, recycling yards, construction machinery and materials storage, which are incompatible with the surrounding environment. These agricultural or rural land are mostly of irregular shape and size, intermingled with villages, squatters, active and fallow farmland, vegetation clusters and small knolls.
The evolution of the brownfield sites can be traced back to the history of rural land development in the NT. In the NT, private land is mostly held under "Old Schedule" lots contained within the Block Government Leases (BGL, formerly known as Block Crown Leases) and is described as "agricultural land". The BGL reflected the state of farming when it was executed in 1905. In 1983, the High Court ruled in the "Melhado" case that lots granted under the BGLs are subject to no restriction on the use of land, other than the clause preventing "Noisome or Offensive Trades". In other words, so long as the development does not include any buildings, the agricultural lot owner under BGLs may use the land for purposes other than agriculture.
In 1991, the Town Planning Ordinance (TPO) was amended to empower the Town Planning Board to designate "Development Permission Areas" (DPA) in rural areas in the NT and prepare statutory plans to cover such areas. The Planning Authority is empowered to take enforcement action against unauthorised developments within DPAs, unless the development is an "existing use", permitted under the relevant statutory town plans, or covered by valid planning permission. Land uses (including brownfield operations) that were in existence immediately before the first publication of the draft plan for the DPA are regarded as an "existing use" under the TPO and do not constitute unauthorised developments.
It has all along been the Government's stance that the relevant departments would take stringent enforcement actions against illegal land uses on brownfield sites once discovered in accordance with the prevailing legislations and mechanisms. Such illegal land uses include unauthorised structures in violation of lease conditions, unauthorised development under the TPO, illegal occupation of government land and fly-tipping. Unlike squatters, there is at present no government policy to tolerate the temporary existence of brownfield sites that contravene the law or lease conditions. Hence, there is no need for the Government to carry out survey for brownfield sites akin to the 1982 SCS. The Government would continue its enforcement actions against existing and future brownfield sites that contravene the law or lease conditions. Given the aforementioned historical development however, many existing brownfield sites are neither in breach of lease conditions nor the statutory planning regime; in such cases, assuming no illegal occupation of government land, the Government does not have the authority to carry out enforcement actions against such operations or eradicate them.
"Freezing surveys" conducted for the purpose of development projects generally refer to one of the standard processes conducted before land resumption and clearance when the Government needs to resume and clear land for individual public works or public development projects. Its purpose is to capture information of the existing structures within the development areas and to register the existing status of occupation of those structures. The information obtained will serve as a basis for assessment of eligibility for rehousing and/or ex-gratia allowances, where applicable. The general principle is that structures and occupiers not captured during the "freezing surveys" will not have a claim for consideration. Generally speaking, "freezing surveys" are conducted for the purpose of individual projects requiring land resumption and clearance, and the timing of the surveys would be tied to the development schedule of the relevant projects.
The "territory-wide survey on brownfield sites" mentioned in the question by the Hon Yiu Chung-yim presumably refers to the Study on Existing Profile and Operations of Brownfield Sites in the NT to be commissioned by the Planning Department (PlanD). The purpose of the study is to establish a comprehensive profile of brownfield sites including the distribution and uses of brownfield sites in the NT, in order to facilitate the Government to formulate appropriate policies for tackling brownfield sites, including devising appropriate planning and consolidation strategy for brownfield sites in different areas, and exploring feasible and viable measures to accommodate brownfield operations still needed locally, with a view to achieving the objectives of optimising land utilisation, releasing brownfields' potential and improving the rural environment. The purpose and nature of the Study is fundamentally different from the 1982 SCS and "freezing surveys" for individual development projects mentioned above. As regards brownfield sites that contravene the law or lease conditions, the Government's position all along as stated above is that the relevant departments would take stringent enforcement actions against illegal land uses on brownfield sites once discovered in accordance with the prevailing legislations and mechanisms. We do not consider it appropriate to use the Study on Existing Profile and Operations of Brownfield Sites in the NT to be commissioned by PlanD as a basis of or substitute for enforcement actions. Including enforcement as part of the objectives of the study would also affect the information to be collected in the study and survey, which in turn would impede the formulation of strategy to tackle brownfield sites.
My reply to the three-part question is as follows:
(1) PlanD is conducting the consultant selection process for the Study on Existing Profile and Operations of Brownfield Sites in the NT. The Study is expected to commence in the first half of 2017, with a view to completing it by end-2018.
(2) As mentioned above, unlike squatters, there is at present no government policy to tolerate the temporary existence of brownfield sites that contravene the law or lease conditions. Hence, there is no need for the Government to carry out survey for brownfield sites akin to the 1982 SCS. For existing or future brownfield sites that contravene the law or lease conditions, the Government would continue its enforcement actions.
If individual brownfield sites fall within the development areas of individual public works or public development projects requiring land resumption and clearance, the Government would carry out "freezing surveys" to capture information and the status of occupation of existing structures on the brownfield sites within the development areas in accordance with established procedures.
When formulating the appropriate planning and consolidation strategies for brownfield sites in different areas, the Government would consider how to tackle existing brownfield sites in a holistic manner, with a view to achieving the objectives of optimising land utilisation, releasing brownfields' potential and improving the rural environment.
(3) If land resumption and clearance is required for individual public works or public development projects, the Government would handle the relevant compensation matters in accordance with the established mechanism and procedures. As mentioned above, relevant departments would take stringent enforcement actions against illegal land uses on brownfield sites once discovered, including unauthorised structures in violation of lease conditions, unauthorised development under the TPO, illegal occupation of government land and fly-tipping, in accordance with the prevailing legislations and mechanisms.
Ends/Wednesday, February 8, 2017
Issued at HKT 14:00