|Government announces Private Columbaria Bill
The Government announced today (June 18) that the Chief Executive in Council has approved the Private Columbaria Bill. Through the Bill, the Government proposes to establish a licensing regime to regulate the operation of private columbaria. According to the Bill, the operation of a private columbarium in Hong Kong must be covered by a licence, exemption or temporary suspension of liability.
Under the Bill, columbaria seeking a licence must comply with all statutory and government requirements, including those relating to land leases or other land instruments, town planning and building safety, and submit a management plan to the Licensing Board.
For a columbarium which was in operation before 8am today (cut-off time) with interred ashes in niches (pre-Bill columbarium) and meets other requirements under the Bill, the columbarium will be eligible to apply for exemption status under the future licensing regime if it is a dated columbarium (i.e. its operation commenced before January 1, 1990). Other pre-Bill columbaria and all non-pre-Bill columbaria must obtain a licence for continuing their operation and selling (including letting out) niches in future.
If a pre-Bill columbarium wishes to apply for exemption status, it must freeze its scale of operation and cease selling (including letting out) new or unoccupied niches by the cut-off time. Should such columbaria continue to sell and let out niches after 8 am today, they will lose their eligibility for seeking exemption status and must obtain a licence for continuing their operation and selling (including letting out) niches when the proposals in the Bill are in future passed by the Legislative Council.
A spokesman for the Food and Health Bureau said that the Government has conducted two rounds of public consultation in the past few years. It found that the community generally supported a licensing scheme for regulating private columbaria. However, diverse views were received over how existing private columbaria not in compliance with prevailing statutory and government requirements should be regulated.
The spokesman said, "Residents in the neighbourhood of unauthorised private columbaria demand stringent regulation to put an end to the nuisances caused by these columbaria. On the other hand, a good number of people stressed that the value attached to ancestral worship in Chinese culture should be respected. Upsetting the resting place of the deceased should not be contemplated lightly.
"In taking forward such a scheme, we must position our policy objectives in an appropriate manner. To strike a reasonable balance, we need to proactively protect consumer interests on one hand, while allowing the sustainable development of the private columbarium sector on the other. We must also be pragmatic in handling existing private columbaria which do not comply with certain requirements under prevailing legislation."
The Bill also sets out a special arrangement for handling the non-compliant structures of "pre-Bill columbaria" seeking a licence or exemption, with a view to avoiding massive displacement of interred ashes which will upset the resting place of the deceased and result in descendants having to find other places to relocate their ancestors' ashes, causing social discord.
With compliance with building safety requirements as a prerequisite, if a "non-compliant structure" of a pre-Bill columbarium satisfies the definition under the Bill and has been certified by professionals to be safe, it could stay on, but any such structure is confined only to the following that existed before the cut-off time: a structure which has interred ashes or is an essential ancillary facility supporting the operation of the columbarium. In general, the special arrangement will only be applicable to niches situated in single-storey structures, the ground floor of multi-storey structures or on-grade outdoor niches. The Licensing Board will consider individual applications according to their own merits.
Under the Bill, the Government proposes to set up a statutory licensing authority, the Private Columbaria Licensing Board, with the Chief Executive as the appointment authority and the Director of Food and Environmental Hygiene as the chairperson. The Food and Environmental Hygiene Department (FEHD) will be the executive arm and enforcement agency of the Licensing Board.
An operator of a pre-Bill columbarium seeking a licence or exemption may apply to the Licensing Board for temporary suspension of liability if he or she needs time to work towards meeting the relevant requirements. The temporary suspension of liability would enable the columbarium to continue operating and providing services before a licence or exemption is granted. During the validity period of the temporary suspension of liability, however, the columbarium concerned could not sell (or let out) any new or unoccupied niches. The Licensing Board will determine the duration of temporary suspension of liability taking into consideration individual circumstances.
To assist the Licensing Board to be set up in future to determine which columbarium is a pre-Bill columbarium, the FEHD has launched a notification scheme today and issued letters to private columbaria known to the Government, requesting them to submit relevant information. FEHD officers will visit the columbaria to verify the information furnished.
The spokesman said, "The information collected by the FEHD through the notification scheme will serve as a basis for the Licensing Board to determine in future whether a columbarium is a pre-Bill columbarium and its eligibility for applying for various specified instruments under the Bill (i.e. licence, exemption and temporary suspension of liability).
"We urge columbarium operators to participate in the notification scheme or else they may in future face difficulties when applying to the Licensing Board for specified instruments. We would also like to appeal to the public to provide information on columbaria not already listed on the Information on Private Columbaria published by the Development Bureau so that the relevant department could duly follow up."
As regards consumer protection, the Bill imposes a number of requirements. These include requiring a licensee to enter into contracts with its clients in which the terms for the sale of an interment right in respect of a columbarium (for example the nature of the interment right such as the niche involved, its size, duration and fees), including the availability or otherwise of a maintenance fund, should be clearly spelt out. A contract should cover certain essential terms or else consumers may nullify the contract and ask for a refund. The Bill also sets out clearly the responsibility of the operators to handle the interred ashes upon cessation of operation. Failure to discharge such a responsibility may render the operator criminally liable.
"Before the Bill is passed by the Legislative Council, the requirement to apply for a licence to operate a columbarium and sell niches is yet to come into force. However, as is currently the case, private columbarium operations are still required to comply with various statutory and government requirements (including those relating to town planning, land use and building safety)," the spokesman added.
Prior to the passage of the Bill and implementation of the licensing scheme, in order to assist members of the public to get hold of the relevant information, the Development Bureau has published on its website (www.devb.gov.hk) information on land/lease (user restriction) and town planning covering the private columbaria that are known to the Lands Department (LandsD) and/or the Planning Department (PlanD). The information is updated on a regular basis.
The information contains two parts:
Part A includes private columbaria which are compliant with the user restrictions in the land leases and the statutory town planning requirements and are not illegally occupying government land; and
Part B includes other private columbaria known to PlanD and/or LandsD that do not fall under Part A (i.e. those which are pending checking for compliance with the relevant requirements for inclusion in Part A, or those that have been confirmed to be not compliant with the user restrictions in the land leases and/or statutory town planning requirements and/or illegally occupying government land).
The spokesman reminded members of the public that the Bill imposes certain requirements applicable to pre-Bill columbaria. Consumers should not assume that these columbaria must be able to obtain a licence in future. Even if a licence is granted, one could not foretell the maximum ash-keeping capacity that would be allowed under the licence if granted. To protect their rights, consumers choosing to purchase a niche from a private columbarium before the enactment of the Bill should enquire with the operators to find out how they would, in the event that the respective private columbarium for various reasons ceases operation or is wound up or is unsuccessful in its application for regularisation/licence/licence renewal, handle the interred ashes properly as well as deal with the interests of the affected consumers and relevant arrangements, including whether and how a refund or compensation would be made to the affected consumers. Consumers should pay attention and ascertain if contract terms are in place to protect the interests of consumers in this respect.
According to the Bill, "columbarium" means any premises that are used, or intended to be used, for keeping ashes. The Bill covers columbaria providing permanent or temporary storage, regardless of whether ashes are kept in niches or not.
The Bill is applicable to all private columbaria. It does not apply to:
(a) a columbarium that is built, operated, managed or maintained by the Government;
(b) columbaria in private cemeteries specified in Part 2 of Schedule 5 to the Public Health and Municipal Services Ordinance (Cap. 132) (such as the cemeteries operated by the Board of Management of Chinese Permanent Cemeteries or Buddhist, Catholic and Christian organisations) and columbaria managed by the Board of Management of Chinese Permanent Cemeteries;
(c) private crematoria listed in Part 6 of Schedule 5 to the Public Health and Municipal Services Ordinance (Cap. 132), to the extent that the keeping of ashes in it is transient and incidental to its operation as a crematorium;
(d) premises which are the place of business of an undertaker holding a licence under the Undertakers of Burials Regulation (Cap. 132 subsidiary legislation CB) and whose licence does not prohibit storage of ashes in the course of the provision of burial services (however, provisions concerning ash disposal and cessation of columbaria business still apply to them); and
(e) the keeping of no more than five containers of ashes in domestic premises with each container containing the ashes of only one person.
Detailed legislative proposals under the Bill have been uploaded to the webpage of the Food and Health Bureau (www.fhb.gov.hk). Members of the public may make enquiries by calling the government hotline (3142 2300) or email to the Food and Health Bureau (email address: firstname.lastname@example.org).
The Private Columbaria Bill will be published in the Gazette on June 20 and introduced into the Legislative Council on June 25.
Ends/Wednesday, June 18, 2014
Issued at HKT 08:00