Introduction

Offensive trade clauses are clauses in the Government Lease/Conditions of Sale that prohibit the use of the land lots for certain trade/business. In the recent case of UNI-Creation Investments Ltd v Secretary for Justice HCMP 2166/2015, the use of a land lot in the village of Nim Yuen in Tung Chung as a private columbarium is challenged.

Background

The Plaintiff, being the registered owner of the subject land lot and the owner of the private columbarium, sought for a declaration that use of the subject land lot as a private columbarium does not breach the relevant offensive trade clause in the Government Lease which reads “the lessee … shall not, nor will, during the continuance of this demise, use, exercise or follow, in or upon the said premises, or any part thereof, any noisy, noisome or offensive trande or business whatever …” (the “OTC”). The Defendant counter-claimed that the Plaintiff was in breach of the OTC and sought for an order that the Plaintiff ceases its business and removes all items relating to the columbarium business.

Issues

The issues before the Court were:

• what is the meaning of “offensive” in the OTC; and
• whether the Plaintiff’s columbarium constitutes a breach of the OTC.

The meaning of “offensive”

The Court held that “offensive” should be given a wider meaning to include anything which causes reasonable discomfort or disquiet to any person within the relevant location. The judge noted the importance of context when construing a clause and defining the words therein. When there are understandable sensitivities in the case, namely, the treatment of human remains and worshipping of one’s ancestors, a trade that does not offend by virtue of smell, noise or sight may still be “offensive” within the meaning of the OTC.

Whether there was a breach of the OTC

The Defendant accepted that the operation of columbarium is not offensive per se. There exists in Hong Kong columbaria on land which is subject to the same OTC and listed as approved under Part A of the “Information on Private Columbaria”. Therefore, the judge held that the particularity of the columbarium in question has to be looked at, i.e. whether this particular columbarium in this particular location constitutes a breach of the OTC. A trade can be offensive in one location but inoffensive in another. The nature of the business, the locality in which it is situated, the manner in which it is carried on and its effect on the neighbourhood have to be considered.

In this case, the subject land lot was not subject to any statutory plan or town planning control, so no planning permission was required from the Town Planning Board for the operation as columbarium. None of the original village houses remain in the subject land lot and the nearest inhabited village is estimated to have a very small number of people living there.

The Defendant did not challenge the manner in which this columbarium has been operated. In fact, all aspects of the conduct of the Plaintiff since 2007 have not given rise to criticism, save and except the current complaint for breach of the OTC. The Plaintiff even got support from 4 villagers from nearby villages or other villagers for the operation of legal columbarium in Tung Chung in general or the position that the Plaintiff’s columbarium did not cause inconvenience or nuisance. Although some of these support were from people outside the relevant Nim Yuen village, the Court found it unfair to dismiss such evidence as they were all people with great local knowledge and understanding. It is therefore permissible, in a case of this nature, to look into the evidence with a measure of caution.

Further, there are several ancient burial sites in the vicinity and burial urns and clan graves nearby. But there is no evidence that they cause disquiet or a sense of unease to the local villagers. The Defendant therefore needed to prove that why this particular method of storage of human remains (i.e. columbarium) is so different and thus causing a breach of the OTC.

The main evidence of the Defendant is some complaints made against the columbarium.  But they were subject to the challenges by the Plaintiff.  For example, some complaints were made via 1823 call centre but there were no particulars at all, and the letter from the Alliance for the Concern over Columbarium Policy only asked the relevant government authorities to investigate if there was any illegal development on the land lots, instead of a complaint. The Court held that the evidence of the Defendant was weak and the objections from the Plaintiff were not unreasonable when objectively evaluated with regard to the particularity in the case.

Therefore, the Court held that the Plaintiff’s columbarium did not breach the OTC in the Government Lease.

Conclusion

As pointed out by the Court, the case did not turn on the definition of “offensive” but on the evidence adduced to prove it. Therefore, when one evaluates if a columbarium business carried on a land lot is in breach of an offensive trade clause, it is important to look at all the relevant evidence in relation to the particular location and circumstances. As demonstrated in this case, the support of the residents in the vicinity is one of the relevant evidence to show that the trade was not offensive.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.