Further enforcement actions against Tin Shui Wai soil fill

The Government is highly concerned about the potential impact of the soil fill opposite Kingswood Villas in Tin Shui Wai. The Government has thus taken further enforcement actions across departments including the Buildings Department (BD), Civil Engineering and Development Department (CEDD), Planning Department (PlanD) and Environmental Protection Department (EPD) by ordering the strengthening of the concerned slope potentially with collapse risk to ensure public safety, requiring the landowner and responsible person to provide further information on the use of the site, and issuing an Enforcement Notice against the confirmed unauthorised development requiring the notice recipient to discontinue the subject unauthorised development.

The BD served Dangerous Hillside Orders on March 8 to the owners of the concerned pieces of land under section 27A of the Buildings Ordinance (BO), requiring them to appoint professionals to undertake an investigation of the land and submit a remedial proposal to ensure public safety and commence urgent shotcreting work for the provision of a protective cover within one week as the first phase of the remedial measures.

The concerned parties today (March 21) submitted to the BD a notice of appointment of authorised person and registered geotechnical engineer and informed the BD that the urgent shotcreting works will commence tomorrow (March 22). The BD has warned the concerned parties that the specified works must be carried out as scheduled, otherwise the BD will appoint its contractor to carry out the shotcreting works immediately in default of the owners under section 27A(3) of the BO and then recover the cost of the default works, together with a supervision charge and a surcharge of not exceeding 20 per cent on the cost of the works from the owners.

"The Government attaches great importance to public safety. There is no indication of imminent collapse of the soil fill. However, the fill materials are found to be loose due to the lack of proper compaction and the vegetation on the soil fill has been removed recently, resulting in a potential risk of collapse of the exposed parts of the soil. The situation may worsen in the upcoming rainy season. Therefore, it is necessary to commence the shotcreting works immediately to prevent further deterioration of the situation in the rainy season and ensure public safety," a spokesperson for the BD said.

The spokesperson added that if the landowner fails to comply with the Dangerous Hillside Orders, the Building Authority will consider instigating prosecution against the landowners. Under section 40(1B) of the BO, any person who fails, without reasonable excuse, to comply with an order served on him under section 27A of the BO may be prosecuted and shall be liable on conviction to a fine of $50,000, to imprisonment for one year and to a further fine of $5,000 for each subsequent day during which the failure to comply with the order has continued. The BD and the CEDD will continue to monitor the said spot to ensure that no hazards would be posed to the public due to soil fill collapse.

The PlanD will take enforcement actions in accordance with the Town Planning Ordinance (TPO).  The concerned site is mainly zoned "Recreation" (REC) on the Ping Shan Outline Zoning Plan (OZP).  Any recreational or other developments, including filling of land/excavation of land for such developments in the said zone requires prior planning permission from the Town Planning Board (TPB) or otherwise may constitute an unauthorised development under the TPO.  However, PlanD's records reveal that the site was used for open storage of sand before the first gazettal of the draft Ping Shan Development Permission Area (DPA) Plan on June 18, 1993.  As such, storage of sand at the site is regarded as an "existing use" under the TPO and does not constitute an unauthorised development.

The PlanD noticed that the site used for open storage of sand was covered by vegetation in the recent years. However, the vegetation cover was removed early this year and the original appearance as open storage of sand was revealed. PlanD also noticed that there were excavation and bulldozing activities at the site and is conducting further investigations on the current use of the site. The Planning Authority (PA) has served today (March 21) a Notice to Require Provision of Information under section 22(7) of the TPO to the landowner and the responsible person to collect more information on the use of the site. Should there be sufficient evidence to prove an unauthorised development occurred on site, appropriate enforcement actions will be taken.

The PlanD's recent site inspection revealed that filling of land was observed in an area to the east of the site which was beyond the boundary of open storage of sand existed before the relevant DPA plan came to effect in 1993. The said filling of land involved an area which is largely zoned "Green Belt" on the Ping Shan OZP. Such operation constitutes an unauthorised development under the TPO as no planning permission has been granted by the TPB. The PA today (March 21) has issued an Enforcement Notice under section 23(1) of the TPO to the concerned land owner requiring discontinuance of the unauthorised filling of land in the said area within seven days. The PlanD also found signs of further unauthorised filling of land expanding to the west. The PlanD is collecting evidence on this incident. There may be new suspected unauthorised development cases which require appropriate enforcement actions.

The PlanD will continue to follow up any suspected unauthorised development cases and having regard to the circumstances would consider prosecuting the land owners of the lot concerned in accordance with the TPO. According to sections 21 and 23 of the TPO, any person undertakes/continues unauthorised development or fails to comply with the Notice will be subject to a fine of $500,000 for a first conviction, and $1,000,000 for subsequent convictions plus a daily fine of $50,000 (first conviction) or $100,000 (subsequent convicted) if the unauthorised development or non-compliance with the notice continues. The PlanD reiterates that even if the existing use as open storage of sand is not regarded as an unauthorised development under the TPO , the land owner is obliged to comply with other statutory requirements of relevant legislations, including ensuring that the open storage of sand does not create slopes that potentially risk collapsing and affecting public safety.

The Lands Department (LandsD) reiterates that the lots involved in land filling are private agricultural land held under Block Government Lease.  According to a court ruling in respect of a case in early 1980s, there was no restriction on the land use under the Block Government Lease.  It is not in breach of the conditions of Block Government Lease for private agricultural land used for open storage.  Therefore, LandsD cannot take enforcement actions according to the conditions of land lease.  In view of the court ruling, the Government had amended the TPO in early 1990s to extend the applicable areas of the TPO to the rural areas covered by DPA Plans in the New Territories. The PA was empowered to take enforcement actions against person(s) who undertook unauthorised development.  However, a use that existed before the relevant statutory DPA plan takes effect is an "existing use" under the TPO and does not constitute an unauthorised development. LandsD stresses that lot owner(s) concerned is/are responsible for complying with the laws of Hong Kong whereas relevant law enforcement department(s) will take enforcement actions in view of specific situations according to relevant legislations. 

The EPD found that the site formation works there did not observe the regulations stipulated under the Air Pollution Control (Construction Dust) Regulation to prevent dispersion of dust. The EPD has warned the responsible person and is now preparing for instituting prosecutions in accordance with the law. The EPD also said that appropriate deposition or reuse of construction waste is not in breach of the Waste Disposal Ordinance. The Waste Disposal Ordinance is aimed to combat against illegal dumping of waste which is without the consent of land owner or lawful occupier. Concurrently, these activities have to be done in accordance with all relevant legal requirements, including the environmental laws. In 2007 and 2008, the land owner had confirmed to the EPD that the site was to be used for deposition of large quantity of construction materials, and the land owner also conducted greening works projects there. The EPD will continue to collaborate with other government departments to step up inspection to combat any illegal dumping of construction waste.

Ends/Monday, March 21, 2016
Issued at HKT 23:01