August 2023

Office of The Ombudsman
30/F, China Merchants Tower, Shun Tak Centre,
168-200 Connaught Road Central, Hong Kong

Dear Sir / Madam,
Views on Ombudsman’s Direct Investigation to Examine the Enforcement by the Planning Department and the Lands Department Against Unauthorised Land Developments

1. The problem of unauthorized development in local rural areas, which is intensified by ineffective legislation and law enforcement, has long been a prevalent threat to our fragile ecosystems and rural environment. We appreciate the Office’s initiative to start the entitled investigation and would like to provide the following comments based on our long-term observation of the issue.

<u>Loopholes in the current legislation</u>

2. We consider the current legislation incomprehensive and ineffective, rendering it difficult for government departments to act against activities that are destructive to the rural characters or ecological system, well-being and health of rural residents and agricultural operations of the areas concerned.

3. Many of the environmentally-damaging acts we observed may not fall under the control of the existing ordinances due to their nature, scale, and land-ownership status of the impacted areas. For example, vegetation removal and landfilling with materials (mostly nonarable soil or construction and demolished waste) less than 1.2m on Agricultural land use zones were exempted from planning control under the Town Planning Ordinance (TPO), despite such acts usually clearly indicating development, stockpiling or destruction rather than normal farming activities. Land uses not involving buildings on private land lots granted under Block Government Leases are also not restricted by the leases due to the High Court’s decision on the 1983 Melhado Case.

4. Areas not covered by Development Permission Area Plans (DPA Plans) have long been the blackspots of environmental vandalism as the Planning Department has no enforcement power under the current legislation. Although the government is planning to fill this loophole by strengthening the enforcement-related provisions under the TPO, the amendment appears to be bundled with the controversial streamlining process of other statutory procedures and lacks details of implementation. We opine that the authority should tackle this long-standing problem by speeding up the process of amending the respective terms of TPO.

5. Even areas which are or have previously been covered by DPA Plans are not fully protected by the law. The current legislation exempts uses which existed at the time of formulating the Plans, despite those uses being damaging or posing risks to the environment. It is also unknown whether the changes in the scale of such uses (e.g. area and volume of C&D waste stockpiling) are controlled under the law.

<u>Ineffective and inefficient enforcement</u>

6. For cases which fall under the ambit of the Planning and Lands Departments, the time needed for the departments to respond to complaints and consider the cases as unauthorized development is often long. Green Power has made complaints to the authorities regarding landfilling activities at various sites in the New Territories (e.g. Ho Chung, Ha Wo Hang, Po Kat Tsai, Tsiu Keng and Fu Yung Pei) over the past few years, and the time of responses from the departments confirming or suggesting enforcement actions to be conducted ranged between 18-27 days for the Planning Department and 21-49 days for the Lands Department after the complaints were lodged. While we understand the collection of sufficient evidence for enforcement takes time, <u>such time frames are often too long to halt environmental vandalism, which can easily worsen within a few days</u>.

7. The efficiency of follow-up actions including issuance of further statutory notices, checking for compliance and further enforcement actions, as well as the deterrence of the law also appear to be unsatisfactory, which could be illustrated by a case at Ha Wo Hang, Sha Tau Kok. We lodged a complaint regarding a landfilling case at the site to the authority on 2nd December, 2022. The Planning Department issued an Enforcement Notice (EN) on 20th December 2022, and a Reinstatement Notice (RN) on 4th January, 2023 requesting the land owner and responsible person to reinstate the site by 4th April, 2023. We revisited the site and found that no reinstatement had been conducted, and new paving materials were found on site on 17th April, 2023, which was about two weeks after the deadline for the RN. Further complaints were made to the Planning Department in April and May. We received a recent update about the case from the department stating that prosecution actions regarding the previous violation of statutory notices would be (instead of had been) followed and a new EN had been issued after a fellow green group complained about the worsening of the site condition according to its site observations in late August, 2023. This case, which is supposed to be very straightforward, showcased that <u>environmental vandalism can continue for nearly nine months under such a non-deterrent legal system, as well as belated and passive implementation of the law</u>.

<u>Statutory reinstatement fails to restore ecological status/values</u>

8. Under the current legal requirement, offenders are only required to seed grasses in addition to removal of unauthorized structures and materials in the vandalized area, irrespective of the original habitat type, upon receiving a RN issued by the Planning Department. <u>This practice does not help to restore the environmental/ecological conditions of the damaged areas to their original state and allows permanent damage to the ecological value of the area</u>.

9. In the Ha Wo Hang case, the vandalized area was once part of a vibrant wetland-stream ecosystem which harbors high diversity of wetland flora and fauna. The area was originally fed by the nearby natural streams and well-covered by wetland plants. Green Power has been conducting surveys on the odonate fauna of Wo Hang since 2022 and recorded more than 50 species of dragonflies and damselflies in the area within a single wet season, which amounts to nearly 40% of the total number of odonate species in Hong Kong. However, bare removal of construction materials from the filled area and grass-seeding as required in the reinstatement notice clearly would not restore the area back into a wetland, as well as its function of sustaining the wetland community.

10. It should also be noted that only a portion of the vandalized area in Hong Kong covered by enforcement involve the issuance of RNs, and the actual quality of reinstatement is also far from satisfactory. Additionally, many unauthorized developments have caused air pollution (with fugitive dust, odour, smoke, etc), water pollution (with sewage discharge, polluted surface runoff, etc), flooding by blockage of drainage pathways and obstruction of footpaths. Very often these adverse impacts cannot be rectified satisfactorily and the rural community will continue to suffer for a long time.

11. The spirit of the current laws should be upheld and reflected in their enforcement. Protection of rural and natural characteristics, which include landscape, ecological and environmental conditions, are clearly stated in the planning intention of certain land uses in statutory plans. <u>We opine that the authority should respect the original characteristics of areas covered by the plans, and clearly include restoring vandalized sites back to their original state in the legal requirements. Technical advice regarding the proper restoration of the sites should also be sought from relevant government departments and conservation experts</u>.

12. The presence of the current “environmental” legislation gives a fallacious impression that our natural assets could be safeguarded by laws, with the above loopholes and bureaucracy usually being neglected, rendering the legal system non-preventive for and ineffective in stopping environmentally-damaging acts. Unfortunately, such façade amongst civil servants and legislators have lowered their guard to prevent occurrence of eco-vandalism and nip it in the bud. We would also like to add that other departments, including the Agriculture, Fisheries and Conservation Department and the Environmental Protection Department also have their roles and responsibilities in stopping and investigating environmental damages caused by these unauthorized developments under their jurisdiction. We thus opine that it is worthwhile to expand the scope of the study or initiate another investigation about their performance in this regard. We sincerely hope the investigation can provide corresponding recommendations which protect the characteristics and functions of our valuable but fragile natural and rural areas in Hong Kong. Thank you very much for your kind attention. For further inquiries, please contact the undersigned at Green Power (T: 3961 0200, F: 2314 2661, Email:

Yours faithfully,

Yuen Yan Ling, Elaine
Conservation & Research Manager
Green Power

Yours faithfully,

Yuen Yan Ling, Elaine
Conservation & Research Manager
Green Power