The risk of flooding is relatively high in the lowlying areas of North West and North Districts of the New Territories. The chance of flooding could be reduced if watercourses within these areas are adequately maintained. Quite a number of main watercourses run through or are besieged by private lands and it is necessary to gain access to these private lands to carry out maintenance of the watercourses. However, there were circumstances in which the Government was unable to obtain the consent of entry and hence could not undertake the necessary maintenance works.
Under the Land Drainage Ordinance, the Drainage Authority is given powers to carry out maintenance works and to exercise control within certain watercourses with the aim of protecting lives and properties in flood prone areas.
This Guide briefly describes the main provisions of the Land Drainage Ordinance for the general guidance of members of the public. It is not an authority for the explanation or interpretation of the provisions of the Ordinance, for which purpose the Ordinance itself must be resorted to and relied on.
Powers Conferred on the Drainage Authority
The Ordinance creates a Drainage Authority (DA), who is the Director of Drainage Services. Under the Ordinance, the DA may:
- prepare draft Drainage Authority Area Plan (Draft Plan) and designate any watercourse as "Main Watercourse";
- enter private lands for the purpose of carrying out inspection and executing drainage works in any Main Watercourse;
- order removal of obstructions or structures in Main Watercourse; and
- control erection of obstructions or structures within any Main Watercourse.
Drainage Authority Area Plan
Drainage Authority Area Plan is a plan showing the boundary of the Drainage Authority Area and those watercourses designated as Main Watercourses. The flow rate of the watercourses, the uses of the adjacent lands and the flooding susceptibility of the area are some of the considerations in designing Main Watercourses. Up to now, there are a total of five Approved Drainage Authority Area Plans under enforcement, which cover the major drainage basins in the North and North West Districts of the New Territories, namely, Tin Shui Wai, Yuen Long/Kam Tin/Ngau Tam Mei, San Tin, Indus and Ganges. These Approved Plans are available for public inspection in the Land Registry without payment of any fee.
Objection to the Draft Plan
During the preparation of a Draft Plan, Heung Yee Kuk, District Councils and Rural Committees will be consulted as an administrative measure. After the Draft Plan is completed, a notice will be published in the Government Gazette, Chinese language and English Language newspapers. The Draft Plan will also be available for public inspection. The Ordinance will apply to the areas and Main Watercourses shown on the Draft Plan from the day of first publication of the Gazette Notice.
Any person aggrieved by a Draft Plan may lodge a written objection with the DA. The DA will consider the objection, and he may either reject the objection or proposed alternations to the Draft Plan to meet the objection.
If an objector is aggrieved by the DA’s decision, he may write to the secretary to the Drainage Appeal Board Panel for a review. Members of the Drainage Appeal Board Panel are appointed by the Chief Executive and they are not public officers. After resolving and reviewing all objections, a finalized Draft Plan will be submitted to the Chief Executive-in-Council for consideration.
If the Chief Executive-in-Council refuses to approve a finalized Draft Plan, the Draft Plan gazetted previously will be repealed and a new Draft Plan may be prepared. If the Chief Executive-in-Council asks for further consideration and amendment of a finalized Draft Plan, the previously gazette Draft Plan will continue to be effective until there is a new Draft Plan published.
A finalized Draft Plan approved by the Chief Executive-in-Council is named as the “Approved Plan” which will replace the Draft Plan gazetted previously.
Main Functions of Drainage Authority
The DA will carry out drainage works and exercise control measures within Main Watercourses for the purpose of keeping them free flowing. Drainage works that may be executed by the DA include desilting and repair to related river embankment, removal of obstructions or structures.
Where the DA considers that any obstructions or structures block any Main Watercourse or impede its free flow or are likely to cause damage to any property or life in a Drainage Authority Area, the DA may order the occupier or owner of the land on which the obstructions or structures are situated to remove them.
Any person who intends to erect structures, carry out engineering works, filling, or repair works within Main Watercourses is required to obtain the consent of the DA by applying to the DA in writing. However, such consent, if given, does not entitle any person not to comply with other legislations.
Review and Appeal
This Ordinance provides for the appointment of a Drainage Appeal Board Panel (Panel). The Chairman of the Panel will nominate a Drainage Appeal Board (DAB) to handle any review and appeal raised.
An objector aggrieved by the decision of the DA at Draft Plan making stage may apply to the secretary to the Drainage Appeal Board Panel for a review. The applicant may appear before the DAB and shall be given an opportunity to make representations.
The DAB may either confirm the decision of the DA or direct the DA to consider making alterations to the Draft Plan.
Any person aggrieved by the DA's decision or requirement relating to:
(i) execution of drainage works;
(ii) removal of obstructions or structures; or
(iii) refusal of granting consent to proposed works within Main Watercourse,
may make an appeal by sending a notice to the secretary to the Drainage Appeal Board Panel. The appellant and the DA may appear before the DAB in the hearing of the appeal.
In the case of execution of drainage works by the DA, the DAB may either confirm the decision of the DA, or direct the DA to make such alterations to the proposed works as the DAB thinks fit. In other cases, the DAB may confirm, reverse or vary the DA's decision.
A decision of the DAB on an appeal shall be final. However, any person aggrieved by the decision of the DAB as erroneous on point of law may appeal to the High Court.
This Ordinance provides for compensation under certain circumstances. Matters for which compensation may be claimed include:
- physical or structural damage to any land or building resulting from execution of drainage works, execution of temporary works, or entry on land;
- damage to crop or agricultural cultivation resulting from execution of drainage works, execution of temporary works or entry on land;
- disturbance resulting from execution of drainage works, execution of temporary works or entry on land;
- resumption of any land which is no longer beneficially usable as a result of execution of any works by the DA; or
- removal of any legitimate structure ordered by the DA.
If the DA and the claimant cannot settle any claim for compensation, the claim may be referred to the Lands Tribunal to adjudicate.
Any person who commits an offence under the Ordinance shall be liable to the following penalties:
|Sections||Type of offence||Maximum penalty|
Willfully obstructs any authorised person performing duty arising under the Ordinance.
Interferes with or damages any drainage works or temporary works executed by the DA within a Main Watercourses.
Erects structure, carries out engineering works, filling, repair works within a Main Watercourse without the content of the DA.
Erects any structure designed to contain or direct water from any Main Watercourse without the consent of the DA.
Enquiries relating to the Ordinance may be made to:
Land Drainage Division
Drainage Services Department
15th Floor, Kowloon Government Offices 405 Nathan Road, Kowloon, Hong Kong
Telephone no. 2300 1440