As cremation becomes more common in Hong Kong, the demand for columbarium facilities is on the rise.  In view of the limited number of public columbaria niches, private columbaria sprung up on the market to meet such increasing needs.  Some may be situated in the New Territories or even inside industrial buildings.  However, purchasers may not take notice of the fact that those private columbaria are indeed unauthorised developments in breach of the requirements under the Government Lease and the Town Planning Ordinance.

Introduction

Private columbaria need to comply with the relevant requirements on land use zoning as specified in the statutory Outline Zoning Plan (“OZP”), building design and building standards and all the conditions under the Government Lease.

Government Lease Requirements

Depending on the provisions in the Government Leases, the landowners would have to apply to the Lands Department for modification of lease conditions for the provision of columbarium facilities or regularising a breach of land lease requirements.Prior to such application, applicants are advised to apply for and obtain the relevant planning permission from the Town Planning Board (“TPB”) first.If the application to TPB is approved, the Lands Department will then include the appropriate conditions for lease modification and may require the payment of a land premium.

Statutory Land Planning Requirements

Columbaria operators would have to apply for planning permission from TPB and will have to comply with the planning requirements under the Town Planning Ordinance (Cap. 131) (“the Ordinance”).In general, if a site is zoned for ‘Other Specified Uses’ within an annotation of ‘Cemetery’ or ‘Columbarium’, ‘columbarium’ use is permitted as of right and planning permission from TPB is not required.However, the majority of the statutory plans classified ‘columbarium’ as uses that may be permitted with or without conditions on application to TPB (“Column 2 uses”) under the Notes to OZP (which form part of OZP) (“the Notes”) for Government, Institution or Community and/or Green Belt zones.Planning permission from TPB under the Ordinance should be obtained.For development of ‘columbarium’ other than these two categories, a rezoning application has to be submitted to TPB under the Ordinance.

TPB will normally take into account all relevant planning considerations, including location, land use compatibility, traffic and environment impacts, views from relevant Government departments and the public when processing the application.TPB may impose certain planning conditions when granting planning permission.Under the Ordinance, TPB is only empowered to take enforcement action by issuing enforcement notices and taking prosecution actions in case of non-compliance with the requirements of the statutory OZP.

Recent Decision of The Shrine (明月山)

In a very recent case Hero Limited & Anors v The Director of Planning, the Court considered whether a private columbarium, The Shrine (明月山), is an unauthorised development.The Court decided it is not a shrine within the meaning of the Notes and therefore was an unauthorised development.The Court dismissed the Applicant’s challenge to the decisions of the Director of Planning in issuing several enforcement notices under the Ordinance requiring The Shrine to discontinue such unauthorised development.The key issue is whether The Shrine is a development which falls within the meaning of ‘shrine’ permitted for village type development (“V zone”) under OZP.

Definition of Shrine and Columbarium

The Definitions of Terms published by TPB (“the Definitions”) defined ‘shrine’ as ‘a place or structure, other than building, for worship’.The remarks for ‘shrine’ further described ‘shrine’ as ‘usually of small-scale’ excluding ‘buildings for religious purpose’.‘Columbarium’ is defined as ‘any place or vault with niches or urns that contain the ashes of cremated bodies’ in the Definitions.

Different Classification of Shrine and Columbarium Under OZP

In the Notes, ‘shrine’ is one of the uses that are always permitted (“Column 1 uses”) except for Column 2 uses or Conservation Area.On the other hand, ‘columbarium’ is classified as Column 2 uses in the Government, Institution or Community Zone and the Green Belt Zone.As for Green Belt Zone, ‘columbarium’ use could only be permitted if it is within a ‘Religious Institution or extension of existing columbarium’, whereas ‘shrine’ was listed as Column 1 uses.Given the different classification of ‘shrine’ and ‘columbarium’ under OZP, there is strong indication that a use which should properly be classified as ‘columbarium’ cannot be classified as ‘shrine’ at the same time.

Planning Intention

Another important question is whether, in the context of OZP, a building accommodating a business of providing cupboards/caskets facilities can properly be regarded as a composite structure of many shrines and as such always be permitted without any need for an application to TPB.A key factor in determining this is the planning intention for V zones.

In the Notes, the planning intention for V zones is to designate both existing recognized villages and areas of land considered suitable for village expansion.The land within V zones is primarily intended for development of small houses by indigenous villagers.Selected commercial and community uses serving the needs of the villages and in support of the village development are always permitted on the ground floor of a New Territories Exempted House.For other commercial, community and recreational uses, they may be permitted on application to TPB.

Two observations can be made from the Notes.For one thing, V zones are reserved for village type of development.For another, there is a clear distinction between uses serving the needs of the villages and in support of village development and other commercial, community and recreational uses.

Columbarium Not Permitted Under V Zones

‘Shrine’ is permitted in all zones as it is of small scale and of minor use without substantial building works.In contrast, ‘columbarium’ is large scale and obnoxious use which may generate impacts on traffic, environment and infrastructure and should generally be zoned as ‘Other Specified Uses’ to reflect the planning intention.

In light of this difference in planning intention, The Shrine does not seem to serve the needs of the villagers and in support of the village development.The huge number of visitors at different times of the year and the wide range of cultural practices related to columbaria facilities such as incense burning and chanting would not serve the needs of the villagers and indeed may not even be agreeable to them in the first place.Such a development is inconsistent with the planning intention.

The Court therefore held that in planning context there has been a consistent distinction between ‘shrine’ and ‘columbarium’ and the proper meaning of ‘shrine’ does not extend to a structure with great planning implications like a columbarium.The definition of ‘shrine’ has also specifically excluded structure in the scale of a building.A clear conclusion is that a columbarium in the size of The Shrine is not a shrine (as its name has suggested), but a columbarium.

Proposed New Licensing Scheme of Private Columbaria

More and more citizens in Hong Kong voiced their complaints in relation to private columbarium facilities.In particular, there are allegations of occupation of government land by those facilities.Some queried whether those facilities are in compliance with the land leases and statutory planning requirements.On 6 July 2010, the Food and Health Bureau published the Public Consultation on Review of Columbarium Policy (“the Consultation Paper”) to gauge the public opinion on regulation of private columbaria.In response, the general public has formed a positive view on the government proposal to regulate private columbaria.

The government proposed amendment to the Public Health and Municipal Services Ordinance (Cap. 132) to provide for the scheme to license private columbaria.In the future, it will be an offence to operate a private columbarium without a licence.The operator will be liable to a fine and/or imprisonment.Such licensing system would not preclude the existing enforcement authorities (e.g. TPB, Lands Department, Buildings Department and Fire Safety Department) from taking enforcement actions against any private columbarium that has breached the respective legislation and requirements.

The future legislation will also provide that operators of the pre-existing private columbaria may apply for a licence or temporary exemption.Any private columbarium that has been granted temporary exemption must freeze the number of niches and stop further sale of niches before proper licence is issued.It would be an offence to operate a private columbarium without a licence or temporary exemption.The licensing authority will take enforcement action against such unlawful columbaria.

For the time being, purchasers are advised to make sure their rights are protected under the sale and purchase agreement in the event that the operators of private columbaria are in breach of the relevant land planning legislation or government lease requirements.