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Information Services > Enforcement of Unauthorized Development > Enforcement of Unauthorized Developments in the Rural New Territories

 
     
   
 

ENFORCEMENT OF UNAUTHORIZED DEVELOPMENTS 
IN THE RURAL NEW TERRITORIES

 

  1. What is the purpose of the pamphlet?

  2. What is an unauthorized development? Why is enforcement against unauthorized developments necessary?

  3. What is an "Existing Use"?

  4. How will I know whether a "development" 3 is permitted under the statutory plan?

  5. Is planning permission required for the filling of land, filling of pond or excavation of land?

  6. How will a planning permission become invalid?

  7. How is an unauthorized development discovered?

  8. Can the Authority prosecute the operators?

  9. What kind of notices may be issued by the Authority?

  10. Will prior warning be given before taking enforcement action?

  11. What can I do if I disagree with a notice served by the Authority?

  12. How will I know if a notice has been served on me?

  13. What is the penalty for failing to comply with a notice?

  14. Apart from prosecution, what will the Authority do if an Enforcement Notice, a Stop Notice or a Reinstatement Notice is not complied with?

  15. How will a notice be discharged?

  16. Is the Authority empowered to enter any land for investigation?

  17. Do I have any statutory defences if I am prosecuted under section 23(6) of the Ordinance for non-compliance with a notice?

  18. Information and Enquiries

 

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  1. What is the purpose of the pamphlet?
  • The pamphlet aims to facilitate the land owners, occupiers and operators to have a better understanding of the enforcement provisions and requirements under the Town Planning Ordinance, Cap. 131 (the Ordinance) so that they would not commit an offence under the Ordinance inadvertently.

  • This pamphlet is intended for reference only. Reference should be made to the relevant provisions of the Ordinance for formal interpretation of the law.

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  1. What is an unauthorized development?
  • The Ordinance empowers the Town Planning Board (TPB) to designate development permission areas (DPAs) and to prepare statutory plans for these areas. Land within an area covered by either a DPA plan or an outline zoning plan (OZP) which has replaced a DPA plan1 is subject to statutory planning control and the provisions on enforcement under the Ordinance.

  • The Ordinance provides that no person shall undertake or continue development within a DPA unless:
    1. the development is an "Existing Use";
    2. the development is permitted under the relevant statutory plan; or
    3. the development has been granted a valid planning permission under the Ordinance.

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  1. Why is enforcement against unauthorized developments necessary?
  • In the rural New Territories, unauthorized developments usually include conversion of agricultural land to other uses such as open storage of construction materials/machinery, container depots, car parks and workshops as well as filling of land, filling of pond or excavation of land without planning permission.
  • In many cases, apart from contravening the statutory plans, these developments may also cause environmental degradation and problems such as flooding, pollution, traffic congestion, nuisance to nearby residents and damages to the natural environment.
  • Enforcement against unauthorized developments is necessary in order to prevent further degradation of the rural environment.

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  1. What is an "Existing Use"?
  • "Existing Use" means the use of any building or land that was in existence immediately before the first publication2 in the Gazette of the notice of the draft DPA plan.

  • If the land was once covered by an interim development permission area (IDPA) plan, the "Existing Use" refers to the use that was in existence immediately before the first publication2 of the IDPA plan.

  • "Existing Use" can continue, but intensification of an "Existing Use" not conforming to the statutory plan, such as increasing the number of containers deposited on a container storage yard in a "Green Belt" zone, without planning permission is an unauthorized development.

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  1. How will I know whether a "development" 3 is permitted under the statutory plan?
  • The Notes of the relevant statutory plan set out:
    1. the types of uses which are always permitted as listed in the covering Notes or in Column 1 of the Schedule of Uses for each zone in the Notes; and
    2. the types of uses which require permission from the TPB as listed in the covering Notes or in Column 2 of the Schedule of Uses for each zone in the Notes.
  • There are three possibilities:
    1. If the proposed development is always permitted, you may proceed.
    2. If planning permission is required for the proposed development, you should apply for planning permission from the TPB under section 16 of the Ordinance. Your application will be considered by the TPB within two months. After taking into account relevant considerations, the TPB may approve your application with or without conditions or refuse to approve your application.
    3. If the proposed development does not fall within Column 1 or Column 2 of the Schedule of Uses or the covering Notes, it is not a permitted use. Nevertheless, except in environmentally/ecologically sensitive areas (i.e. areas zoned "Site of Special Scientific Interest", "Conservation Area", "Coastal Protection Area", "Comprehensive Development and Wetland Enhancement Area" and "Comprehensive Development to include Wetland Restoration Area", etc), applications can be made to the TPB for permission for temporary uses or developments up to a maximum of three years.

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  1. Is planning permission required for the filling of land, filling of pond or excavation of land? 
  • Any person who wishes to undertake a development (even for a permitted use) involving filling of land4, filling of pond or excavation of land should check the Notes of the relevant statutory plan to see whether planning permission is required. For example, in conservation zones (such as "Site of Special Scientific Interest", "Coastal Protection Area", "Conservation Area" and "Green Belt" zones), any filling of land/pond requires permission from the TPB. In "Agriculture" zone, any filling of land/pond also requires permission from the TPB, except the filling of land that is specifically required under prior written instructions of government department(s), or for the purposes of laying of soil not exceeding 1.2 metres in thickness for cultivation or construction of any agricultural structure with prior written approval issued by the Lands Department.

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  1. How will a planning permission become invalid?
  • Planning permission granted on a temporary basis will become invalid upon expiry of the effective period. The development will then become an unauthorized development unless the applicant can obtain new permission from the TPB.

  • The TPB may grant planning permission with conditions and the applicant should comply with the conditions within the specified time limit. If these conditions are not complied with within the specified time limit, the planning permission will be revoked with immediate effect without further notice. Continuing the development after revocation of the permission constitutes an unauthorized development.

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  1. How is an unauthorized development discovered?
  • The Director of Planning (the Authority) is responsible for the control of unauthorized developments under the Ordinance. The Central Enforcement and Prosecution Section (CEPS) of the Planning Department undertakes the day-to-day duties in relation to the enforcement and prosecution against unauthorized developments.

  • CEPS staff will investigate public complaints of alleged unauthorized developments or referrals by other government departments. The Planning Department pledges to give a reply to the complainant within four weeks after receiving a complaint. CEPS staff will inspect the site of an alleged unauthorized development when necessary.

  • Unauthorized developments may also be confirmed through regular site patrols and observations from aerial photographs.

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  1. Can the Authority prosecute the operators?
  • Under section 20(7) and (8) and section 21 of the Ordinance, any person who undertakes or continues an unauthorized development (i.e. the occupier or person responsible for the unauthorized development) commits an offence and may be prosecuted without prior warning/notice.

  • If convicted, such person is liable to a maximum fine of $500,000 for the first conviction and a maximum fine of $1,000,000 in the case of a second or subsequent conviction.

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Enforcement Notice

  • Where, in the opinion of the Authority, there is or was an unauthorized development, the Authority may serve an Enforcement Notice on the land owner, occupier or person responsible for the unauthorized development under section 23(1) of the Ordinance.

  • An Enforcement Notice requires that the relevant matters that constitute the unauthorized development should be discontinued by a specified date.
 


Stop Notice

  • Where the Authority considers that continuance of the relevant matters that constitute the unauthorized development could constitute a health or safety hazard; adversely affect the environment; or make it impracticable or uneconomic to reinstate the land within a reasonable period, a Stop Notice pursuant to section 23(2) of the Ordinance may be served.

  • The Stop Notice requires that the relevant matters should be discontinued and steps should be taken by a specified date to prevent anything related to those relevant matters from causing the adverse effects.
 


Reinstatement Notice

  • Where an Enforcement Notice or Stop Notice has been served in relation to the unauthorized development, the Authority may serve a Reinstatement Notice under section 23(3) of the Ordinance.

  • A Reinstatement Notice requires the person concerned to reinstate the land by a specified date to the condition it was in immediately before the first publication of the DPA plan or the IDPA plan (if any) or to such other condition, more favourable to the person concerned, as the Authority considers satisfactory.

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Notice to Require Provision of Information

  • Where the Authority has reasonable grounds to believe that any person has any relevant information which he may require for exercising his powers, he may serve a notice under section 22(7) of the Ordinance on the person and require that person to provide the information within a specified date.

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  1. Will prior warning be given before taking enforcement action?
  • In general, a warning letter will be issued to the land owner, occupier or person responsible for the unauthorized development prior to enforcement action. The warning letter will be issued to these persons by post and may also be posted on site where necessary.

  • A warning letter will not be issued for the unauthorized development at the site involving previous enforcement action.

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  1. What can I do if I disagree with a notice served by the Authority?
  • Any person aggrieved by a decision of the Authority in respect of a Reinstatement Notice may, within 30 days after service of the notice, apply in writing to the Secretary for Development for a review of the Authority's decision under section 24(1) of the Ordinance. If such an application is received, the decision under review will be suspended until the review is completed.

  • Except for the review of a Reinstatement Notice mentioned above, there is no statutory right of review under the Ordinance for other Notices served by the Authority.

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  1. How will I know if a notice has been served on me?
  • Any Enforcement Notice, Stop Notice and Reinstatement Notice issued under section 23 of the Ordinance may be served on the land owner, occupier or any person responsible for the unauthorized development
  1. in person;
  2. by post to his address;
  3. by depositing it in his post box; or
  4. by posting it in a prominent position on or near the land or on any premises or structure on the land affected by the notice.
  • The notice will be registered at the Land Registry against the title of land.

  • Any Notice to Require Provision of Information issued under section 22(7) of the Ordinance may be served in person, by post to his address or by depositing it in his post box.

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  1. What is the penalty for failing to comply with a notice?
  • Any person who fails to comply with an Enforcement Notice, a Stop Notice or a Reinstatement Notice commits an offence.

  • The fine for a first conviction is up to $500,000 plus a daily fine of $50,000 after the expiry of the notice. In the case of a second or subsequent conviction, the fine is up to $1,000,000 plus a daily fine of $100,000.

  • Any person who fails to provide the information as required under the Notice to Require Provision of Information, provides false information or knowingly omits any particular material commits an offence and is liable to a fine up to $100,000.

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  1. Apart from prosecution, what will the Authority do if an Enforcement Notice, a Stop Notice or a Reinstatement Notice is not complied with?
  • If an Enforcement Notice, a Stop Notice or a Reinstatement Notice is not complied with by the date specified, the Authority can enter the land under section 23(7) of the Ordinance and take any necessary steps to ensure the unauthorized development is discontinued, to prevent the adverse effects, or to reinstate the land. These steps may involve taking possession of, removal, detention and disposal of any movable property on the land.

  • The expenses incurred in entering the land and taking the necessary steps may be recovered as civil debt from the person served with the notice.

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  1. How will a notice be discharged?
  • If the Authority is satisfied that the requirements of the notice issued under section 23 of the Ordinance have been complied with, he will issue a Compliance Notice under section 23(4A) or 23(8A) of the Ordinance.

  • The notice will also be registered at the Land Registry against the title of land.

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  1. Is the Authority empowered to enter any land for investigation?
  • Except for domestic premises where prior agreement of the occupier or a warrant from a magistrate is required, the Authority may, without warrant or notice but at a reasonable time, enter the land and any premises on it (and through which access is needed) for the purposes of :
  1. ascertaining whether there is or was an unauthorized development or any matters that constitute or constituted an unauthorized development;
  2. posting a notice under section 23 of the Ordinance; and
  3. verifying that an unauthorized development has been discontinued, any step has been taken or land has been reinstated as required.
  • The Authority may require any person on the land to give details of his identity, name and address and produce his identity card for inspection, or require the person responsible for or in charge of that land to provide information or assistance to enable the Authority to carry out his functions.

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  1. Do I have any statutory defences if I am prosecuted under section 23(6) of the Ordinance for non-compliance with a notice?
  • Under section 23(9) of the Ordinance, it is a defence if the defendant proves that :
  1. the unauthorized development in fact was not a development;
  2. he took all reasonable steps in the circumstances to comply with the notice;
  3. the unauthorized development was, in fact, an "Existing Use" or, in the case of land within an IDPA, was in existence immediately before the first publication in the Gazette of the notice of the relevant IDPA plan;
  4. the unauthorized development in fact is permitted under the plan of the DPA or under the plan of an IDPA; or
  5. the unauthorized development in fact was a development for which planning permission had been granted.

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  1. Information and Enquiries
  • We appeal to owners and occupiers of land in the New Territories to help protect our rural area and avoid degradation of the environment. It is the responsibility of land owners and occupiers to ensure use or development on their land conforms with the provisions of the statutory plans.

  • For enquiries on the enforcement against unauthorized developments including the issue of warning letters and statutory notices, please call the Planning Department hotline at 2231 5000, send an email to enquire@pland.gov.hk or visit one of the Planning Enquiry Counters of the Planning Department at the following addresses:

    17/F, North Point Government Offices, 333 Java Road, North Point, Hong Kong
    14/F, Sha Tin Government Offices, 1 Sheung Wo Che Road, Sha Tin, New Territories

  • For further enquiries on the enforcement and prosecution against unauthorized developments at individual sites, please call CEPS of the Planning Department at 2158 6070, send an email to ceppd@pland.gov.hk or visit 13/F, Sha Tin Government Offices, 1 Sheung Wo Che Road, Sha Tin, New Territories.

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Planning Department

March 2011

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1
To find out whether a piece of land falls within an area covered by a development permission area plan, please refer to the schedule of rural outline zoning plans and development permission area plans in TPB's website (http://www.info.gov.hk/tpb/en/list_of_plans/schedule_plan.html).

2
To find out the publication date of the IDPA or DPA Plan, please refer to the schedule of rural outline zoning plans and development permission area plans in TPB's website (http://www.info.gov.hk/tpb/en/list_of_plans/schedule_plan.html) and the Explanatory Statement of the plan.

3

According to the interpretation of the Ordinance, 'development' means carrying out building, engineering, mining or other operations in, on, over or under land, or making a material change in the use of land or buildings.

4
According to the definitions of terms used by the TPB, 'filling of land' means the depositing or placing of earth, gravel or any other substances on land, which results in an elevation of ground level.

 

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  2005 Copyright | Important notices Last revision date : 31 August 2015