Chan Kin Ming and Another v. The Director of Lands

LDLR000001/1985

IN THE LANDS TRIBUNAL OF HONG KONG

Crown Lands Reference No. 1/85

TRIBUNAL: His Honour Judge Scriven, Presiding Officer and K.W. Phillips, Esq., Member

Date of Judgment: 25th June 1986

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JUDGMENT

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1. These Applicants applied to this Tribunal to determine the Compensation payable by the Crown for land resumed under the provisions of the Crown Lands Resumption Ordinance, Cap. 124.

2. The subject land is situate in Sai Kung, in a valley, used largely for agriculture and commercial market gardens, and known as the Ho Chung valley.

3. The Resumption was published in the Hong Kong Government Gazette (G.N. 211 dated 15.1.85) on the 18th January 1985 and the land was expressed to be for the Pak Kong Water Treatment works, and associated facilities. The area of land resumed is 0.04 acres, being described by the Notice in the Gazette as "Lot No. 373 (portion)" and being part of 0.4 acres. The area resumed is thus 1/10th of the original lot and comprises (when reduced to metres and feet) 139.8 square metres or 1505 square feet.

4. We took evidence from Mr. Gilbert Leung Kam Ho a Chartered Surveyor for the Applicants and from Mr. S.C. Gaimster a Chartered Surveyor employed by the Director of Lands as an Estates Surveyor, and also from the present owner of a plot of land (item 14), tendered, for the Applicants, as being of comparable situation and value to the land being resumed but this was a transaction between father and daughter at $51 per sq metre. The witness, the daughter purchasing, admitted she had no ideas of values so we disregard this transaction as a comparable. We also inspected six other holdings in the neighbourhood of the affected land, as well as the subject lot.

5. The first question we have to resolve is the precise use to which the subject land might be or had been put, at or immediately before the Resumption, which took effect on 28th March 1985. Whilst as a matter of general observation from our visit, the subject lot and its immediate environment would appear to be used for general agricultural purposes, and divided into very small holdings, the evidence before us was that "agricultural use" embraces the growing of vegetables, as distinct from land used for growing ornamental plants & shrubs which we were told were properly described as commercial market gardens. Nothing much turns on that in the end, because as the Applicants' own surveyor said "at the date of reversion, the lot was vacant" (2.2 in Ex No. 4) and, later, "The subject lot is a piece of open flat land surrounded by other agricultural land of similar condition (4.5.1 in Ex. 4). In the Block Crown lease the subject land's designation is Agricultural, and the description of the lot is "Padi". The land is not sheltered from the elements in any way, and from our observation of the ether sites we visited and compared with the subject lot it would clearly not be immediately suitable as a nursery or what was described as a commercial market garden, that is to say for growing, in whole or in part, in pots or tubs or other small containers, ornamental plants or flowers or shrubs. Indeed most of the plots immediately adjacent to the subject lot were either growing vegetables, ornamental palms or ginger lilies in a semi wild state. We also inspected sites where market gardening as we have described it was carried on, and in our opinion those other sites were of a different nature to the subject lot, usually with some shelter from the weather, or reasonably close to, or with immediate access to, the highway, for the constant process of transportation which the sale of plants and shrubs throughout the year entails.

6. And so we formed the opinion that the subject lot had to be valued as padi or for the growing of seasonal vegetables or hardy perennial plants such as ginger lilies or ornamental palms, which we saw in the immediately adjacent lots to the subject lot.

7. What was the situation of the subject lot at the time of resumption?

8. We have stated it was vacant at the time of our inspection. It was being used as hard standing for the purposes of access to the site huts and equipment used for the construction of the water trunk main through the hillside below which the subject lot is situated. At the time of resumption there was no direct vehicular access and the subject lot is about 3.5 kilometres south of Sai Kung Town, and 500 metres from the main road known as Hirams Highway, and was about 5 minutes walk along a footpath from the nearest road and car park. There was no water available in the immediate vicinity. We accept however that the subject lot is in a particularly fertile valley and generally suitable for such agricultural use as its limited access makes commercially viable.

9. Both parties presented "comparable" properties for our consideration. These were compiled from the list, Appendix VI, exhibited to the Crown's rule 18 documents filed with the tribunal and then commented on by the Applicants surveyor. Unfortunately, neither party was able to point to other land in the immediate neighbourhood of the subject land as having been disposed of or valued recently, and so we were taken to inspect other sites in the Sai Kung area. Of these we found only one comprising, in part, land in a similar flat and open valley area where the means of access, extent of cultivation, and apparent potential was much the same as the subject lot. These were the lots shown in the Government Surveyors Appendix VI, as item 24 and were known as DD 247 Lots 72, 77 RP and 206 SA, RP. It comprised 3 separate parcels of land. Firstly, there was (206 SA, RP) an area occupied by concrete fish tanks and watchman's structure and used as a fish farm, and then, separately from this, on a gentle sloping hillside were the other purely agricultural lots (77 RP & 72) which we visited by means of a concrete track or footpath passing to within 20 or 30 metres of the plots which were used, for the same type of cultivation as the subject lot, as far as we could observe.

10. The evidence which we accepted was that the total area of item 24, comprising 2832.8 square metres, had been sold on the 7th December 1984 for $180,000 or a unit rate of $63.5 per square metre.

11. The Applicants did not accent this transaction as truly comparable, since they said the purchaser was a trespasser without any licence or agreement. There was absolutely no evidence to support this aspect of the sale, and we feel it right to observe that, assuming the concrete fish tanks were in situ at the time of the sale to him, a sitting tenant or trespasser is not likely to have paid for them, but assuming that he did, then in part of a, predominantly, purely agricultural holding, as the price would embrace both the special commercial use of part as a fish farm and the other as purely agricultural land, then presumably the fish tanks and structures by themselves would command a higher rental or purchase price than for the purely agricultural plots. So that we see no reason in the absence of evidence of a forced sale to find other than that the value of the agricultural part was somewhat less than a proportion of the whole.

12. We were shown photographs of a plot (item 23), being two lots having a total of 1650.9 square metres off the Clearwater Bay Road (Exhibit 19) which appears to be rough, unsheltered uncultivated land overlooking the sea and on an exposed clifftop. This changed hands on the 13th February 1984 for $50,000. The transaction included only a half share of the smaller lot having an area of 194 square metres resulting in an analysed rate of $32.2 per square metre to represent the market value for a plot, apparent uncultivated, certainly not intensely cultivated, if at all, and having access rather more difficult (according to the plans and photographs and the hillside situation) than the subject lot.

13. We felt that with item 24 we had evidence of a recent sale of comparable land, in terms of cultivation and access, to the subject land so that allowing for the value of concrete fish tanks and being generous to the Applicants, a rate of $60 per square metre would appear to be about the value for the whole of Lot 373 and the resumption of Part in the absence of any ether factors would reduce the value of the whole by $60 per square metre for the land resumed. The remainder will not be reduced further in values and there was no claim in severance; we disregard any improvement subsequent to resumption, due to increased access, and for all these reasons we awarded compensation at the rate of $60 per square metre for the resumption of 139.8 square metres, making a total of $8,388 which we rounded up to $8,500.

14. Dated this 25th day of June 1986.

Representation:

For the Applicants: Wong Poon Chan & Law

For the Respondent: Nigel Kat, S.C.C.