Hong Kong Regulations

WATER POLLUTION CONTROL (SEWERAGE) REGULATION - SCHEDULE 1

COMPENSATION RIGHTS AND ASSESSMENT

(Past version on 01/07/1997).
(Past version on 30/06/1997).

[sections 11, 12, 13, 14 & 22]

PART I

Item

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 shall be served on the
Secretary 1. (a) Physical or structural damage to any land or building
resulting from any works undertaken by the Authority-

   (i)  under Part II of this Regulation; or

   (ii) under Part IV of this Regulation, but only if attributable to the
        negligence of the Authority. 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. Any person
        owning a compensatable interest in the land or building. 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). A disturbance payment. Same as in paragraph (a). Same
        as in paragraph (a). 2. The resumption of land under section 13 of the
        Roads (Works, Use and  Compensation) Ordinance ( Cap 370). As if the
        claim were made under the Crown 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 Crown Lands
        Resumption Ordinance ( Cap 124) if the land had been resumed under
        that Ordinance. Before the expiration of 1 year from the date of 
        resumption. 3. (a) The creation of an easement or other permanent
        right or a right of temporary occupation under section 15 of the
        Roads (Works, Use and  Compensation) Ordinance ( Cap 370). (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. Any person owning a compensatable  interest in the land.
        Before the expiration of 1 year from the date on which the easement or
        right is created.

   (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.

   (b)  Disturbance resulting from the creation of an easement or other
        permanent right or a right of temporary occupation under section 15 of
        the Roads (Works, Use and Compensation) Ordinance ( Cap 370). A
        disturbance payment.

Same as in paragraph (a). Same as in paragraph (a). 4. (a) The extinction, by
the operation of section 13(3) of the Roads 
(Works, Use and Compensation) Ordinance ( Cap 370), of any easement in favour
of land not resumed when adjacent or contiguous land is resumed. 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. Any person owning a compensatable 
interest in the land not resumed. Before the expiration of 1 year from the
date of  resumption of the adjacent or contiguous land.

   (b)  Disturbance resulting from the extinction of that easement. A
        disturbance  payment. Same as in paragraph (a). Same as in paragraph
        (a).

5. The closure of, or extinction, modification or restriction of a private
right in respect of, a road or part of a road under section 17 of the
Roads (Works, Use and Compensation) Ordinance ( Cap 370), 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. Any person owning a compensatable interest in the
land. Before the expiration of 1 year from the closure, extinction,
modification or restriction.

   (b)  A disturbance payment. 6. (a) The extinction, modification or
        restriction of any private right over Crown foreshore or sea-bed under
        section 17 of the Roads (Works, Use  and Compensation) Ordinance (
        Cap 370). 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 adjacent or contiguous land, any diminution
        in the open market value of that interest. Any person in whom the
        private right is vested. Before the expiration of 1 year from the date
        of extinction, modification or restriction.

   (b)  Disturbance resulting from that extinction, modification or
        restriction. A disturbance payment. Same as in paragraph (a). 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 19 of the Roads (Works, Use  and Compensation) Ordinance (
        Cap 370). 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. Any person owning a
        compensatable interest in the land or building. Before the expiration
        of 1 year from the date of completion of the operations carried out
        under section 19 of the Roads (Works, Use and Compensation) Ordinance
        ( Cap 370) from which the damage is alleged to have resulted.

   (b)  Disturbance resulting from the exercise of any power contained in
        section 19 of the Roads (Works, Use and Compensation) Ordinance (
        Cap 370). A disturbance payment. Same as in paragraph (a). Same as in
        paragraph (a). 8. (a) The removal, under section 21 of the
        Roads (Works, Use and  Compensation) Ordinance ( Cap 370), of any
        object or structure which was erected and maintained without the
        contravention of any Ordinance or Crown lease. 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. Any person owning a compensatable interest in the
        land or building. Before the expiration of 1 year from the date of
        removal.

   (b)  Reinstating an object or structure described in paragraph (a) or of
        replacing the same with a similar object or structure. The expense
        fairly and reasonably incurred in so doing in so far as that expense
        is not taken into account under paragraph (a). Same as in paragraph
        (a). 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
        Crown lease and is not to be reinstated or replaced with a similar
        object or structure. The amount which is fairly and reasonably
        estimated as the value of the object or structure. Any person owning a
        share or interest in the object or structure. Before the expiration of
        1 year from the date of removal.

   (d)  Disturbance resulting from the exercise of any power contained in
        section 21 of the Roads (Works, Use and Compensation) Ordinance (
        Cap 370). A disturbance payment. Same as in paragraph (a). Same as in
        paragraph (a).

9. An amendment required or a condition imposed, under section 22(1)(c) or

   (d)  of the Roads (Works, Use and Compensation) Ordinance ( Cap 370),
        (other than a condition mentioned in section 22(6) of that Ordinance),
        to avoid incompatibility with the works. 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. (L.N. 281 of 1998) 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. 10.
Physical or structural damage or disturbance resulting from the restoration of
waters undertaken by the Authority under section 13A of the Ordinance, but in
the case of a person convicted of an offence referred to in subsection (1) of
that section, limited to damage attributable to the negligence of the
Authority. Same as in item 1(a) and (b).

Same as in item 1(a) and (b). Same as in item 1(a) and (b).

PART II

1. General effect of this Part

The provisions in this Part shall, where applicable, have effect for the
purpose of assessing compensation under Part I and shall-

   (a)  be in addition to such of the provisions of the Lands Resumption 
        Ordinance ( Cap 124) as apply, by virtue of Part I, to the assessment
        of compensation; and (29 of 1998 s. 76)

   (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 I 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  13
(3) of the Roads (Works, Use and Compensation) Ordinance ( Cap 370); (29 of
1998 s. 105)

"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 I; and

   (b)  in the case of 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 I, except that a disturbance payment
        shall not 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;

"owner" (擁有人), in relation to land, means the person holding that land-

   (a)  directly under a Government lease; or

   (b)  under another title directly from the Government registered in the
        Land Registry; (29 of 1998 s. 105)

"sea-bed" (海床) includes any Government land covered with water in any
tidal river or channel connected with the waters of Hong Kong; (29 of 1998 s.
105)

"works" (工程) means anything which may be done by the Authority or may be
required by the Authority to be done under or pursuant to Part II, III or IV
of this Regulation.

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 Regulation, no
account shall be taken of any increase or decrease in that value which is
attributable to anything done or proposed to be done under this Regulation or
to the use of any sewerage, whether before or after the completion of any
works (including the existence of any sewerage whether or not in relation to
any use to which it is put).

4. Disturbance payments

(1) For the purposes of assessing the amount to be awarded to a claimant in
respect of a disturbance payment, the Lands Tribunal shall, in respect of any
expenditure or loss to be incurred and in respect of which the claimant is
entitled under this Regulation to be compensated, assess the value of that
expenditure or loss at the time of the award as if that expenditure or loss
formed part of a claim for damages in tort.

(2) No disturbance payment shall be payable in respect of any interference
with a trade or business in any case in which such interference does not
subsist for a period exceeding 14 days.

5. Unlawful building or development works

Compensation may be reduced so far as may be just and equitable in respect of
any building or development, or part thereof which has been constructed or
modified, or on which building works have been carried out, so as to amount to
a contravention of the Buildings Ordinance ( Cap 123) or the Town 
Planning Ordinance ( Cap 131) being a contravention within the meaning of that
Ordinance or to a contravention of a Government lease or other instrument
under which land built upon is held.

(29 of 1998 s. 105)

6. Compensation where damage results only partly from the works

The compensation assessed under item 1, 7 or 10 of Part I shall 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 works.

7. No compensation under item 8 for loss of advertising

Where a sign advertising any business, product, service or activity is removed
under section 21 of the Roads (Works, Use and Compensation)  Ordinance (
Cap 370), nothing in item 8 of Part I shall 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 3, 4, 5, 6, 8 or 9 of Part I has been paid in
respect of the diminution in value of any land and such land or part of such
land is subsequently resumed by the Government under this Regulation or any
other enabling power, then notwithstanding section 3 or any other provision of
law to the same or similar effect, that diminution in value shall 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 the
diminution in value thereof.

(29 of 1998 s. 105)

9. Claim by a mortgagee in possession

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

   (a)  such claim may include compensation in respect of the whole interest
        which comprises the mortgage security; and

   (b)  compensation received by a mortgagee in possession shall 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 shall be payable under item 9 of Part I only to the extent that
the carrying out of building works in accordance with an amendment required,
or condition imposed, under section 22(1)(c) or (d) of the Roads 
(Works, Use and Compensation) Ordinance ( Cap 370) 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 shall, on the application of any such person, apportion
that compensation amongst such 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 3 of Part I, 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 shall be assessed as at the date of the
happening of the relevant event mentioned in column 2 of Part I; and the
person entitled to claim shall be the person fitting the description mentioned
in column 4 of Part I on that date.

13. No double compensation

(1) Subject to subsection (2), nothing in this Regulation shall enable any
person to recover compensation-

   (a)  in respect of 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.

(2) In assessing compensation under this Regulation, no account shall be taken
of any amount recovered by the claimant under a policy of insurance.

14. Crown may undertake certain operations

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

"date of resumption" (收回日期)

"disturbance" (騷擾)

"disturbance payment" (騷擾補償金)

"open market value" (公開市場價值)

"owner" (擁有人)

"sea-bed" (海床)

"works" (工程)