RAILWAYS ORDINANCE - SCHEDULE SCHEDULE

Hong Kong Ordinances

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RAILWAYS ORDINANCE - SCHEDULE

SCHEDULE

Remarks:
Amendments retroactively made - see 29 of 1998 s. 101

[sections 32, 33, 34 & 38]

PART I

1. General effect of this Part

This Part, where applicable, has effect for assessing compensation under Part II and is-

(a)

in addition to the provisions of the Lands Resumption Ordinance (Cap 124) that apply, by Part II, to the assessment of compensation; and (Amended 29 of 1998 s. 101)

(b) prevail over any provision referred to in paragraph (a) which is inconsistent or in conflict with a provision in this Part.

2. Definitions applicable to Part II

In this Schedule-
"date of resumption" (收回日期) means the day on which land reverts to the Government or vests in The Financial Secretary Incorporated under section 18(2) of this Ordinance;
"disturbance" (騷擾) means the dispossession of a person of land or the interruption of or interference with a trade or business, whether such dispossession, interruption or interference is temporary or permanent;
"disturbance payment" (騷擾補償金) means a sum equal to-

(a) the expenditure and loss of money actually and reasonably incurred or to be reasonably incurred and arising from the dispossession of a person of land by reason of the matter for which the claimant is entitled to claim compensation under Part II; and

(b) for disturbance of a trade or business on any land, the expenditure and loss of money actually and reasonably incurred or to be reasonably incurred and arising from the disturbance of that trade or business by reason of the matter for which the claimant is entitled to claim compensation under Part II,

but a disturbance payment is not to include any expenditure or loss which would not be recoverable, on the grounds that the expenditure or loss was too remote or was not caused by the disturbance, if that disturbance were a tort;

"open market value" (公開市場價值) means the amount which the land, if sold in the open market by a willing seller, might reasonably be expected to realize.

3. Fluctuations in value of land

Subject to sections 8 and 10, where the open market value of any land is relevant for the purposes of assessing compensation under this Ordinance, no account is taken of any increase or decrease in that value which is attributable to anything done or proposed to be done under this Ordinance.

4. Disturbance payments

(1) For assessing a disturbance payment, the Lands Tribunal is required, for any expenditure or loss to be incurred and for which the claimant is entitled under this Ordinance to be compensated, to assess the value of the expenditure or loss at the time of the award as if the expenditure or loss formed part of a claim for damages in tort.
(2) No disturbance payment is payable for any interference with a trade or business if the interference does not last for more than 14 days.

5. Unlawful building works

Compensation may be reduced so far as may be just and equitable for any building or part of a building which has been constructed or modified, or on which building works have been carried out, that is a contravention of the Buildings Ordinance (Cap 123) or a contravention of a Government lease or other instrument under which land built upon is held.

6. Compensation where damage results only partly from the scheme

The compensation assessed under item 6 or 7 of Part II is to be reduced to such extent as may be just and equitable having regard to the share in the responsibility for the loss or damage not reasonably attributable to or connected with the scheme.

7. No compensation under item 8 for loss of advertising

Where a sign advertising any business, product, service or activity is removed under section 26 of this Ordinance, nothing in item 8 of Part II is to be construed as conferring upon any person a right to compensation for the loss of any benefit which might have accrued to him from the advertising of that business, product, service or activity if the sign had not been removed.

8. Set off where compensation paid for loss

of value and land later resumed

Where compensation under item 2, 3, 4, 5, 8 or 9 of Part II has been paid for the diminution in value of any land and the land or a part of the land is subsequently resumed by the Government under this Ordinance or any other enabling power, the diminution in value is to be taken into account to reduce the compensation for the resumption of that land in so far as it was taken into account in the assessment of compensation for diminuting its value.

9. Claim by a mortgagee in possession

Where under this Ordinance a claim for compensation may be made by a mortgagee in possession-

(a)

the claim may include compensation for the whole interest which comprises the mortgage security; and

(b)

compensation received by a mortgagee

possession is to be applied by him firstly, to the settlement or reduction of the debt due under the mortgage and then to the payment of any excess to the mortgagor.

10. Limitation on compensation payable under item 9

Compensation is payable under item 9 of Part II only to the extent that the carrying out of building works in accordance with an amendment required, or condition imposed, under section 27(1)(c) or (d) of this Ordinance does not increase the open market value of the land on which the building works are carried out.

11. Apportionment of compensation

Where there is a dispute between persons owning compensatable interests in any land or building as to the apportionment of the compensation payable or paid, the Lands Tribunal is, on the application of any of the persons, to apportion that compensation amongst the persons in such manner as may be just and equitable having regard to their respective rights and interests in the land or building.

12. Date of valuation and interest

Where, under column 2 of Part II, compensation is to be assessed on the basis of the value of land, or the value of a claimant's interest in land, or of a rent, that value or that rent is to be assessed as at the date of the happening of the relevant event mentioned in column 1 of Part II; and the person entitled to claim is the person fitting the description mentioned in column 3 of Part II on that date.

13. No double compensation

Nothing in this Ordinance enables any person to recover compensation-

(a)

for a loss or expense which he has not suffered or incurred; or

(b) which is greater than the loss suffered or expense incurred by him,

but in assessing compensation under this Ordinance, no account is to be taken of any amount recovered by the claimant under a policy of insurance.

14. Government may undertake work

Where, under this Ordinance, a person is entitled to claim compensation and that compensation is to be assessed on the basis of an expense incurred, the Government may, on written notice to that person, carry out the operations for which the expense would otherwise be claimable.

PART II

	Matters for which compensation may be claimed	Basis on which compensation is to be assessed	Persons who may claim compensation for their respective losses	Period within which the claim must be served on the Secretary
1.	The resumption of land under this Ordinance.	As if the claim were made under the Lands Resumption Ordinance (Cap 124) for land resumed under that Ordinance.	Any person who would be entitled to claim compensation for land resumed under the Lands Resumption Ordinance (Cap 124) if the land had been resumed thereunder.	Before the expiration of 1 year from the date of resumption. (Amended 29 of 1998 s. 101)
2.	(a) The creation of an easement or other permanent right or a right of temporary occupation under section 20 of this Ordinance.	(a) (i) In the case of an easement or other permanent right, the amount by which the open market value of the claimant's interest in the land is diminished. (ii) In the case of the creation of a right of temporary occupation, the amount of an open market rent for the claimant's interest in the land occupied during the period of the easement.	(a) Any person owning a compensatable interest in the land.	(a) Before the expiration of 1 year from the date on which the easement or right is created.
	(b) Disturbance resulting from the creation of an easement or other permanent right or a right of temporary occupation under section 20 of this Ordinance.	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
3.	(a) The extinction, by the operation of section 18(2) of this Ordinance, of any easement in favour of land not resumed when contiguous or adjacent land is resumed.	(a) The expense fairly and reasonably incurred in remedying or mitigating the effect of the extinction of the easement, as far as may be practicable, and any diminution in the open market value of the claimant's interest in the land not resumed after such expense has been incurred.	(a) Any person owning a compensatable interest in the land not resumed.	(a) Before the expiration of 1 year from the date of resumption of the contiguous or adjacent land.
	(b) Disturbance resulting from the extinction of that easement.	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
4.	(a) The closure of, or extinction, modification or restriction of a private right in respect of, a road or part of a road under section 22 of this Ordinance, so that access to any land is adversely affected.	(a) The expense fairly and reasonably incurred in remedying or mitigating the effect of such closure, extinction, modification or restriction, as far as may be practicable, and any diminution in the open market value of the claimant's interest in the land after such expense has been incurred.	(a) Any person owning a compensatable interest in the land.	(a) Before the expiration of 1 year from the closure, extinction, modification or restriction.
	(b) Disturbance resulting from that closure, extinction, modification or restriction.	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
5.	(a) The extinction, modification or restriction of any private right over Government foreshore or sea-bed under section 22 of this Ordinance.	(a) The amount which is fairly and reasonably assessed to be the open market value of the right and, where the claimant has a compensatable interest in contiguous or adjacent land, any diminution in the open market value of that interest.	(a) Any person in whom the private right is vested.	(a) Before the expiration of 1 year from the date of extinction, modification or restriction.
	(b) Disturbance resulting from that extinction, modification or restriction.	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
6.	(a) Physical or structural damage to any land or building resulting from the works.	(a) The expense which is fairly and reasonably incurred in repairing the damage and any expense fairly and reasonably incurred in preventing or mitigating the damage.	(a) Any person owning a compensatable interest in the land or building.	(a) Before the expiration of 1 year from the date of the completion of the works.
	(b) Disturbance resulting from the structural damage mentioned in paragraph (a).	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
7.	(a) Physical or structural damage to any land or building resulting from the exercise of any power contained in section 5 or 24 of this Ordinance.	(a) The expense which is fairly and reasonably incurred in repairing the damage and any expense fairly and reasonably incurred in preventing or mitigating the damage.	(a) Any person owning a compensatable interest in the land or building.	(a) Before the expiration of 1 year from the date of completion of the operations carried out under section 5 or 24 of this Ordinance from which the damage is alleged to have resulted.
	(b) Disturbance resulting from the exercise of any power contained in section 24 of this Ordinance.	(b) A disturbance payment.	(b) Same as in paragraph (a).	(b) Same as in paragraph (a).
8.	(a) The removal, under section 26 of this Ordinance, of any object or structure which was erected and maintained without the contravention of any Ordinance or Government lease.	(a) Any diminution in the open market value of the claimant's interest in the land or building; and the expense which is fairly and reasonably incurred in moving the object or structure and making good that part of the building from which it is removed.	(a) Any person owning a compensatable interest in the land or building.	(a) Before the expiration of 1 year from the date of removal.
	(b) Reinstating an object or structure described in paragraph (a) or replacing the same with a similar object or structure.	(b) The expense fairly and reasonably incurred in so doing in so far as that expense is not taken into account under paragraph (a).	(b) Same as in paragraph (a).	(b) Before the expiration of 1 year from the date of reinstatement or replacement.
	(c) The loss sustained in respect of an object or structure which was erected and maintained without the contravention of any Ordinance or Government lease and is not to be reinstated or replaced with a similar object or structure.	(c) The amount which is fairly and reasonably estimated as the value of the object or structure.	(c) Any person owning a share or interest in the object or structure.	(c) Same as in paragraph (a).
	(d) Disturbance resulting from the exercise of any power contained in section 26 of this Ordinance.	(d) A disturbance payment.	(d) Same as in paragraph (a).	(d) Same as in paragraph (a).
9.	An amendment required or a condition imposed, under section 27(1)(c) or (d) of this Ordinance (other than a condition mentioned in section 27(7) of this Ordinance), to avoid incompatability with the works for the construction of a railway.	The amount which is fairly and reasonably estimated as the loss to the claimant, including- (i) any additional expense fairly and reasonably incurred in carrying out building works; and (ii) professional fees and expenses, which loss, expense, fees and expenses are attributable solely to compliance with the amendment required or the condition imposed.	The owner of the land on which the building works are carried out.	Before the expiration of 1 year from the completion of the building works.

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