A Fair View -
A Review on the Access Disputes at Fairview Park Boulevard
From Land Administration Perspective
By Wilson WONG (MILA)
An Accident
A recent traffic accident in which a school boy was knocked down and killed by a heavy bulldozer tractor in Fairview Park Boulevard immediately triggered out furious response of the residents of Fairview Park.
No Entry to Our Land
Supported by a District Council Member of the area and sponsored by the Fairview Park Property Management Office (which represents the developer/big landowner of Fairview Park), the residents of Fairview Park attempted to physically stop the seven-metre-long heavy tractor vehicles (particularly those cargo container tractors) entering into Fairview Park Boulevard which is a privately-owned road.
The attempt certainly aroused strong objections from the operators of the nearby cargo container depots and also from the tractor drivers concerned. They formed an alliance to fight back the Fairview Park residents. These two camps of people almost ended up the confrontation in bloodshed on site had they not been separated by the police. Later they were pacified by the officials from the Transports Department. But the dispute has not been really settled.
Members of the public may wonder why the landowners cannot refuse the heavy vehicles from using the road as their private property. Neither do they understand why the heavy vehicles operators can insist in continually using other person¡¦s property by claiming that they have the right to do so, notwithstanding that there is a public road serving as alternative access.
The author of this article joined the then Yuen Long District Office of the New Territories Administration (which was the then sole Land Administration Authority in the New Territories) in 1974 (and up to 1987 when the Land Administration Authority had already been taken over by the Lands Department in 1982), and had the chance to witness the development of the Fairview Park residential community. The author wishes to share his observation with the readers.
The Story Behind
The idea of developing the then a very large fishpond area in Tai Sang Wai into a low density residential estate with 5,000 houses of 2 to 3 storeys was proposed to the Government in the mid-70's by the developer, the Canadian Development Co. Ltd., which was also the major landowner of the site. This was the first time that such a large scale low density residential scheme had ever been proposed, and so it was supported, and subsequently approved, by the Government as this could help to provide comfortable homes, each with a small garden attached, in a well-planned layout for a population of about twenty-five thousand for middle-class income households.
As this was a private project, it was Government policy not to spend public money to build access road for this residential community. The developer had to purchase private land to build access road for himself giving rise to the making of the present Fairview Park Boulevard. The boulevard is about 1 km in length serving as a vehicular road linking Castle Peak Road and Fairview Park. Besides, the developer also had to build all internal road networks within the Fairview Park for the residents.
In the mid 70's the whole area there in Tai Sang Wai was composed of a number of big fish ponds with some small farm houses near the ponds, and also with some isolated groups of small village type domestic houses scattering there. At that time there was no proper access road linking Castle Peak Road to these fishponds and the neighbourhood settlements. The then Land Administration Authority, in a sense of good faith, required the Fairview Park developer to allow other members of the public to have free passage of right of way on the Fairview Boulevard to the neighbouring areas, as one of the conditions of approval of the scheme. This was registered in the Land Registry.
The houses in the Fairview Park were sold to individuals in such a way that only the house together with the attached garden was sold to each buyer. But all the roads outside the houses within Fairview Park, and the land on which such roads were built, were still owned by the developer. That is to say that all the internal roads of the Fairview Park are privately owned by the developer. However, the developer allows all house-owners and their residents use all these private roads, certainly including Fairview Park Boulevard, on condition that all the house-owners are to appoint the developer (or its authorized agent) to be the Property Management Agent until the end of the Land Lease of Fairview Park (i.e. up to 2047 at present) and pay reasonable management fees to the developer. This was clearly stated in the DMC and also registered in the Land Registry.
The first cluster of houses in Fairview Park was built in about 1979, and gradually more and more houses were built and all the residential settlement clusters were fully occupied in about 10 years time. Both of the Fairview Park residents and their nearby neighbours shared the use of Fairview Park Boulevard and they did not have any dispute, although Fairview Park residents had to finance the maintenance cost of Fairview Park Boulevard whereas the nearby neighbours need not pay.
The Nightmare of Changes
When the Fairview Park houses were being developed and the residential community was growing, the landscapes of the areas adjoining the estate were facing gradual changes owing to the rising of demand for land there. In the late 80's owing to the growth of the business of the cross-boarder logistic transportation, demand for land for housing the cargo container depots were going up. As a result, the agricultural land in Lok Ma Chau area and those other areas nearby could no longer satisfy the demand, the cargo container depot operators began to rent private fishponds from villagers near Fairview Park and turned such fishponds into land for new cargo container logistic depot purposes. The villagers concerned, who were either landowners or cultivators of the fishponds, certainly were quite willing to let or to rent out their fishponds to the logistic depot operators because the rental incomes were a lot more than that from fishpond farming.
Cargo container depot-operators favoured with renting the fishpond-land outside the Fairview Park because the location is comparatively and conveniently near to the Lok Ma Chau boarder-crossing point, and Fairview Park Boulevard is such a proper access road for container tractor traffic. Thus, changes of land uses are brought to the land adjoining the Fairview Park. As a result the changes come to turn Fairview Park Boulevard gradually into a busy and dangerous road.
Before the changes there are already thousands of private cars, mixed with school buses and coaches, hundreds of bicycles using the road, now some hundreds of heavy cargo container vehicles are joining into using it, driving through the Fairview Park Boulevard every day. Apart from the potential danger likely to be caused by these heavy vehicles, the heavy vehicles also caused substantial damages both to the road surface and road foundation of Fairview Park Boulevard. The dented road surface are potential danger for private cars and bicycles, not to mention that drivers and passengers of these small vehicles, and bicycle riders are suffering from unpleasant pumps when driving or paddling along.
In the mid 70's when the developer accepted Government's requirement of allowing members of the public to use Fairview Boulevard as access to its adjourning neighbourhood, there was no such cargo container logistic depot in the vicinity. Naturally, the road was designed and built with its foundation mainly for the use of private cars, school buses, fire-fighting vehicles, general purpose lorries and lorries for fishpond farming activities. Neither the developer of Fairview Park, nor its house purchasers, and not even the Government, would expect that some 10 years later this fishpond area would turn into cargo container depots.
After seeing the brief development history of the Fairview Park, I now focus on land administration issues of this case. In the early 70's this area was a vast piece of fishpond. The Government certainly would not wish to spend too much money or resources in land administration here, say for upgrading the village roads or installing street lighting as these facilities would simply increase the cost for administration. The best idea then was to put some of these administrative responsibility (and cost) on the shoulder of the Fairview Park developer who could in no way refuse, or otherwise the residential scheme might not be approved. Besides, the developer would also have to build and manage all the internal roads and drainage network inside the estate. This is Government's another clever land administration approach. When this residential scheme is developed, the Government would be very pleased to collect rates, property tax, stamp duties (for purchase and sale of the houses), etc. but needs not touch the management and maintenance of these facilities which are still in private land of the developer.
On the other hand, the developer is also happy in taking up these land administration functions because they are means of gaining profits for the developer through the monthly management fees paid by the house-owners. The more costs these land administration duties would incur, the more overhead costs would be charged. From this point of view if the developer completely reconstructs the Fairview Park Boulevard to making it fit for traffic for cargo container tractors, it means more costs are incurred, and in the same logic the developer is in a position to increase management fees and overhead costs.
However, the house-owners and the tenants of the estate are not that stupid overlooking their losses and burdens arising from the said agreement. They strongly object these heavy vehicles to use the Fairview Boulevard, and certainly refuse to pay costs for reconstruction of the road which has been so badly damaged mainly because of the fact that there are large numbers of heavy vehicles using it. They come to argue that when the agreement to allow other members of the public to gain access to the neighbouring destinations through Fairview Park Boulevard was signed, the then neighbouring destinations were just fishpond farming sites and small residential domestic clusters, and were not cargo container depots. They assert that the change of the circumstances have not been taken into account when the agreement was signed and therefore the agreement could not be fully valid now.
To a certain extent from land administration point of view, the change of land use from fishpond farming to cargo container depots is an account of Government's inefficiency in land administration. If these container depots are illegal ones, proper land control action should be taken to get rid of them, and thus the container vehicles using Fairview Park Boulevard will be vanished. If such container depots are approved by the Government, the Government definitely as the Land Authority is collecting lovely Short Term Waiver Fees, Property Tax, Profit Tax and Rates. If so, why doesn't the Government pay for the reconstruction of the road in question? Yes, as mentioned in the preceding paragraphs the Government's land administration policy is not to spend public money in private property (as the road is in private land). Well, we can now take a closer look of nowadays Fairview Park Boulevard. Both sides of the road are nearly fully developed with high class house-and-garden type residential estat's. They are certainly approved by the Government in line with land administration policy and law. In other words the Government has collected quite a lot of lovely sums of land premium upon approving such developments, not to mention the subsequent rates, increased Government Land Rent, etc. So, Fairview Park Boulevard is now actually a main road for public purpose in this area. Again, this is change of circumstances brought about by the Government through land administration means. Is it still fair to let the poor individual house-owners of Fairview Park to pay for the maintenance and reconstruction costs of the road? Why the Government does not consider to resume this private road for public purpose and have it properly reconstructed (also for the use of the container vehicles if the container depots are ¡§allowed to exist¡¨ by the Government)? Of course, to resume this Fairview Park Boulevard will affect the interest of another land administrator, the Fairview Park developer who owns this road. The Government surely needs to pay suitable compensation for resuming the land where this road exists.
Who's Afraid of Not Honouring the Promise?
The disputes over the use of Fairview Park Boulevard emerged more than ten years ago. The residents of Fairview Park even approached LegCo and ExCo members for assistance. According to information revealed by the Fairview Park Management Company, it appears that Government has already considered the said land administration problems (if not inefficiency) and has attempted to do something to address the problems. A trace of evidence is that as early as March 1998 the then Territory Development Department has written to the Fairview Park developer (ref. NTN/RU 2/10/14-1) stating that the Government would build alternative access road, and would erect traffic signs to forbid seven metre-long vehicles (except coaches) to enter into Fairview Park Boulevard once the alternative access road is available for use. The same letter also quoted that such proposal had been endorsed by the then Provisional District Board.
Now, the alternative access road has been completed for more than a year. Traffic signs forbidding 7 meter-long vehicles to enter into Fairview Park Boulevard have also been erected at the entrance point (but such traffic signs are still being covered up by plastic bags). However, the Government only opened the alternative access road upon the confrontation of the two camps of people took place in Fairview Park Boulevard after the fatal traffic accident. But upon seeing the objections of the container depot operators, container tractor drivers and related villagers, the Government still ¡§dared not¡¨remove the cover of the traffic signs. The container depot operators and container tractor drivers claim that the new access road will make them drive for a few extra minutes and consumes a bit more fuel, and so they insist to continue to use Fairview Park Boulevard. We may say that the Government is an open Government and listens to both side¡¦s opinion (if we do not consider this as another example of inefficiency in land administration) and let the problems drag on.
See You Before the Court
Anyway, the Fairview Park developer has filed a case to the High Court against the Government for a decision that the Government should follow up on the promise stated in the above-quoted letter of the then Territory Development Department. All parties concerned and members of the public are definitely keen to see the outcome.