Columbarium loses challenge

PUBLISHED : Tuesday, 04 October, 2011, 12:00am
UPDATED : Tuesday, 04 October, 2011, 12:00am


About 200 buyers of funeral-urn niches at a Yuen Long columbarium have been left in limbo after a court upheld a finding that the operator had violated planning rules.

At least 14 sets of remains already occupying niches at The Shrine in San Wai village will have to be removed if the operator is to comply with the regulations after losing a legal challenge. The operator also has agreements with nine charity groups to house urns.

The Consumer Council has advised those affected to liaise with the operator directly to see if they can get a refund or arrange for the urns to be moved. The Food and Health Bureau, which oversees niche operations, vowed to monitor the situation closely but showed no sign of stepping in.

Yesterday's ruling by Mr Justice Johnson Lam Man-hon was the government's first legal victory in a string of pending challenges over the legality or otherwise of private columbariums, which have mushroomed because of a shortage of public niches. It will make it more difficult for operators to convert old village houses for the purpose of storing urns.

There are, however, at least two more legal challenges pending - from Memorial Park Hong Kong and Yin Hing Monastery, over land lease restrictions and definitions of human remains - which may yet alter the picture.

The operator of The Shrine, Hong Kong Life Group Holdings, has not said whether it plans to appeal against the ruling or what it may do to comply with the planning laws.

Trading in its shares on the Hong Kong Stock Exchange's growth enterprise market was suspended at 11.03am, an hour after the court handed down the ruling.

Information disclosed by the company last year showed it had acquired six buildings in Yuen Long which it intended to convert into storage space for up to 69,000 urns.

The ruling arose from a judicial review filed last year over the Planning Department's enforcement actions against the columbarium, where 1,560 niches were installed in a 2,180 square foot modified historic building without planning approval.

Counsel for the operator, Dennis Chang SC, argued before the High Court in July that The Shrine was in fact a shrine - which had always been a permissible function on land zoned for 'village type' development.

He said a shrine was not just a place for worshipping saints or deities, but also ancestors or loved ones, in line with local Chinese culture.

However, Lam said the development was not consistent with such intentions or the context of the land zoning because of a traffic nuisance it might bring to the area. He also said the development was a lot bigger than most shrines.

Eddie Tse Sai-kit, convenor of the Alliance for Concern over Columbarium Policy, welcomed the ruling but demanded that the government speed up enforcement against other suspected illegal urn storage facilities.

The Development Bureau has identified at least 65 columbariums that it says breach either planning rules, land leases or both. Some are seeking retrospective planning approval and land lease modification to normalise their business.

Celebrating the legal victory, San Wai residents demanded that The Shrine now shut down.

'It should shut down operation immediately, remove the urns and restore the buildings,' villager Chau Chun-kun said outside the court.

Lai Hau-yan, vice chairman of the Hong Kong Columbarium Merchants Association, of which The Shrine is a member, said the association would offer The Shrine help if it had problems finding new homes for the urns.

The Shrine has been actively promoting its services to charity groups.

In November last year, it pledged to donate niches worth HK$1.6 million to the charity Yan Oi Tong so it could allocate them to the needy.

However, a Yan Oi Tong spokeswoman said yesterday this had not happened.

'We have never reached any agreement and we haven't had talks on the details either,' she said.

The Consumer Council has received 17 complaints regarding niche sales this year, compared to 19 last year.

The government has said it plans to issue a consultation document on a proposed licensing system for private columbariums.