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To grant franchises for the construction of a combined road and rail tunnel across the eastern harbour, for the construction of a railway line through the tunnel and of other railway works and the regulation of the construction and maintenance of the works to be constructed; for the payment of tolls to the franchise holder for the use by motor vehicles of the tunnel and the regulation of vehicular traffic in relation to such use; for the transfer by the franchise holder of its right to operate the railway line to the Mass Transit Railway Corporation, and for matters ancillary thereto and connected therewith. (Enacted 1986) [1 August 1986] L.N. 184 of 1986 (Originally 47 of 1986) Cap 215 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Eastern Harbour Crossing Ordinance. (Enacted 1986) Cap 215 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- "Commissioner" means, subject to subsection (2), the Commissioner for Transport; "construction works" (建造工程) means all works carried out or to be carried out under the project agreement and all works required to carry them out; "court" (法院、法庭) includes a magistrate; (Added 29 of 1999 s. 2) "design" (设计) means the design of the construction works or of any part or component thereof and includes plans and engineering information in support of that design; "Director" means, subject to subsection (2), the Director of Highways; "discharge date" (解除义务日期) means the date when the guarantors cease to have any obligations under the guarantee agreement; "engineering information" (工程资料) includes geotechnical and other necessary reports; "guarantee agreement" (保证协议) means the agreement designated as the guarantee agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "guarantors" (保证人) means the New Hong Kong Tunnel Consortium comprising the following members or such other persons as may undertake the obligations of guarantors under the guarantee agreement- Kumagai Gumi Company Limited China International Trust and Investment Corporation Paul Y. Construction Company Limited Lilley Construction Limited;"immersed tube" (沉管) means the immersed cellular structure crossing Victoria Harbour from the sea-wall at Cha Kwo Ling to the sea-wall at Quarry Bay and containing 5 conduits- (a) 2 conduits each containing 2 road traffic lanes; (b) 2 conduits each containing one single track railway line; and (c) one conduit for services and utilities,and includes the protective rock armouring;"land" (土地) includes land under the sea; "Mass Transit Railway Corporation" (地下铁路公司) and "Corporation" (地下铁路公司) mean, subject to subsection (5)(a), the Mass Transit Railway Corporation established by section 3(1) of the Mass Transit Railway Corporation Ordinance (Cap 270); (Amended 13 of 2000 s. 65) "motor vehicle" (汽车) means any mechanically propelled vehicle for use on roads; "operating agreement" (经营协议) means the agreement designated as the operating agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "plan" (图则) means- (a) the plan numbered 1765 signed by the Director and deposited in the Land Registry, Victoria; and (Amended 8 of 1993 s. 2) (b) any new plan deposited in accordance with section 3(3);"project" (工程项目) means the project, the subject of the project agreement, for the following works to be undertaken by the Road Company- (a) the construction of the immersed tube; (b) reclamation and other works on or affecting the foreshore or sea-bed; (c) the construction of approach roads and temporary and permanent alterations to existing roads; (d) the construction of the railway works; and (e) the construction of other buildings, and structures, and the undertaking of other works necessary for the proper carrying out of the project agreement;"project agreement" (工程项目协议) means the agreement designated as the project agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "Rail Company" (铁路公司) means- (a) subject to paragraph (b)- (i) the New Hong Kong Tunnel Company Limited; (ii) in the event of an assignment under section 7(1) by the New Hong Kong Tunnel Company Limited to the Eastern Harbour Crossing Company Limited of the benefit of the franchise granted under section 5(1) and upon such assignment, the Eastern Harbour Crossing Company Limited in place of the New Hong Kong Tunnel Company Limited;(b) in the event of the benefit of the franchise granted under section 5(1) being assigned to, or vested in, a person other than the New Hong Kong Tunnel Company Limited or the Eastern Harbour Crossing Company Limited under or in accordance with this Ordinance (otherwise than by way of transfer under section 8), such other person in place of either of those companies;"rail operating date" (铁路开始经营日期) means the date notified in the Gazette under section 64(1); "railway" (铁路) means the railway constructed or to be constructed by the carrying out of the railway works; "railway works" (铁路工程) means- (a) the extension of the Mass Transit Railway's existing Kwun Tong Line on a viaduct as far as a new overhead station at Lam Tin, then in twin tunnels or at ground level to the north landfall of the immersed tube, then through the immersed tube on 2 single track lines to the south landfall of the immersed tube and continuing in twin tunnels to a terminus at the existing Quarry Bay Station; (b) at Quarry Bay Station, 2 railway station tunnels together with a rail cross-over in a tunnel on the south side of Quarry Bay Station; (c) a new overhead station at Lam Tin with pedestrian access by bridge across Kwun Tong Road, together with escalators to the Lam Tin Estate and modifications to the existing Quarry Bay Station providing a passenger interchange between the Island Line and the twin station tunnels constructed on the extension to the Kwun Tong Line; and (d) all electrical, mechanical and civil works required as a result of the extension of the Kwun Tong Line to Quarry Bay for the operation of the railway;"Road Company" (道路公司) means- (a) subject to paragraph (b), the New Hong Kong Tunnel Company Limited; (b) in the event of the benefit of the franchise granted under section 4(1) being assigned to, or vested in, a person other than the New Hong Kong Tunnel Company Limited under or in accordance with this Ordinance, such other person in place of that company;"road operating date" (道路开始经营日期) means the date notified in the Gazette under section 44(1); "road tunnel" (行车隧道) means the conduits of the immersed tube which contain road traffic lanes; "road tunnel area" (行车隧道区) means the area delineated and coloured red on the plan; "Secretary" (局长) means the Secretary for the Environment, Transport and Works; (Replaced L.N. 106 of 2002) "start of construction" (开始建造日期) means the date upon which the construction works are commenced as agreed, or as determined, under section 16(1); "toll structure" (隧道费构筑物) means any structure erected by the Road Company for the purposes of section 59; "utility" (公用设施) means any electric power cable, telephone cable or other cable used in communication, any telecommunications apparatus, and any pipe used in the supply of water, gas or oil, or for drainage or sewerage, together with any duct for such cable or pipe and any ancillary apparatus or works. (2) Any reference to the Director or the Commissioner in any provision of this Ordinance shall be deemed to include any public officer whom the Director or Commissioner, as the case may be, authorizes to exercise his functions under that provision. (3) Any function to be exercised by the Governor in Council under this Ordinance may, where the Governor is of the opinion that the matter is one of urgency, be exercised by the Governor. (4) A reference in this Ordinance to arbitration under the Arbitration Ordinance (Cap 341) shall be deemed, for the purposes of the Arbitration Ordinance (Cap 341), to be a reference by an arbitration agreement, as defined for the purposes of that Ordinance, to 2 arbitrators, one appointed by each party. (5) In relation to the period on and after the day which is the appointed day for the purposes of section 3 of the Mass Transit Railway Ordinance (Cap 556) (in this section referred to as the "2000 Ordinance"), a reference in this Ordinance or in any notice or other document made under this Ordinance- (a) to the Mass Transit Railway Corporation or the Corporation is a reference to the MTR Corporation Limited as defined in section 2(1) of the 2000 Ordinance; (b) to the Mass Transit Railway Corporation Ordinance (Cap 270) or a provision of that Ordinance is a reference to the 2000 Ordinance or the provision to corresponding effect in the 2000 Ordinance. (Added 13 of 2000 s. 65) (Enacted 1986) Cap 215 s 3 Variation of plan (1) The Director may, with the agreement of the Road Company, cause the boundaries of the road tunnel area to be varied from time to time. (2) Where any such boundaries are so varied, the Director shall prepare a new plan fixing the location of and delineating the road tunnel area. (3) Every new plan prepared in accordance with subsection (2) shall be numbered, dated, signed by the Director and deposited in the Land Registry. (Amended 8 of 1993 s. 2) (4) Whenever a new plan is deposited under subsection (3), the Director shall cause a notification of such deposit to be published in the Gazette. (Enacted 1986) Cap 215 s 4 The road franchise PART II THE FRANCHISES (1) Subject to this Ordinance, the Road Company shall have the franchise to- (a) construct the immersed tube; (b) construct all other works comprised in the project, other than the railway works; (c) keep in place the works referred to in paragraphs (a) and (b), (other than works which are, under the project agreement, to be handed over to the Government) for the purpose specified in paragraph (d) and for the period specified in subsection (2), and (d) operate the road tunnel area for the public, upon payment to the Road Company of the tolls specified in Part IX and the Schedule, for the period specified in subsection (2).(2) The period referred to in subsection (1) is the period that commences at the start of construction and ends on the thirtieth anniversary of the start of construction. (Enacted 1986) Cap 215 s 5 The rail franchise (1) Subject to this Ordinance, the Rail Company shall have the franchise to- (a) construct the railway works; (b) keep in place the railway works for the purpose specified in paragraph (c) (other than works which are, under the project agreement or the operating agreement, to be handed over to the Government, or the Mass Transit Railway Corporation otherwise than by transfer under section 8) and for the period specified in subsection (2); and (c) operate, for the use of the public, a railway transport service on the railway for the period specified in subsection (2).(2) The period referred to in subsection (1) is the period that commences at the start of construction and ends 18 years and 6 months after the rail operating date. (Enacted 1986) Cap 215 s 6 Effect of franchises The franchises granted by sections 4(1) and 5(1) shall be deemed to include all wayleaves and other rights necessary to render such grant effective, but subject thereto nothing in those sections shall be construed as conferring on the Road Company or the Rail Company any title, right or interest in the land on which the construction works are, or are to be, constructed. (Enacted 1986) Cap 215 s 7 Assignment of rail franchise PART III ASSIGNMENTS, MORTGAGES ETC. (1) The New Hong Kong Tunnel Company Limited, being then the Rail Company, may, at any time before the rail operating date, assign to the Eastern Harbour Crossing Company Limited the benefit of the franchise granted to it under section 5(1): Provided that no assignment under this section shall affect the obligations of the New Hong Kong Tunnel Company Limited under the project agreement or of the guarantors under the guarantee agreement. (2) The New Hong Kong Tunnel Company Limited shall notify the Secretary for Transport of any assignment under this section as soon as practicable after the execution thereof. (3) The Secretary for Transport shall, upon receiving notification under subsection (2), give notice in the Gazette of the date of an assignment under subsection (1). (Enacted 1986. Amended L.N. 106 of 2002) Cap 215 s 8 Transfer of rail operating rights The right to keep in place the railway works and to operate a railway transport service granted by section 5(1)(b) and (c) shall, on or before the rail operating date, be transferred by the Rail Company to the Mass Transit Railway Corporation, in accordance with the terms of the operating agreement, for the remainder of the period specified in section 5(2) which is unexpired at the time of transfer: Provided that nothing done under this section shall affect the obligations of the Rail Company under this Ordinance. (Enacted 1986) Cap 215 s 9 Prohibition on assignment etc. of franchise rights (1) Subject to sections 7, 8 and 10 neither the Road Company nor the Rail Company shall assign, subgrant, underlet or otherwise dispose of its rights under this Ordinance or enter into any agreement for such disposal except with the prior consent of the Governor in Council and in accordance with the terms of his consent: Provided that where such disposal is necessary or desirable to enable effect to be given to any arrangements entered into for the purpose of complying with any notice given under section 68 and the Governor in Council is satisfied that- (a) the arrangements are adequate for the purpose; and (b) the person to whom the rights are to be disposed is a person in whom such rights may properly be vested or to whom such rights may properly be transferred,such consent shall not be withheld. (2) The Secretary shall give notice in the Gazette of the date of any disposal authorized under subsection (1), the name of the person to whom the rights are disposed, the nature of the disposal and the date thereof. (Enacted 1986) Cap 215 s 10 Mortgages and charges (1) Nothing in section 9 shall prevent either the Road Company or the Rail Company from securing the payment or repayment of any moneys owing by it under any agreement or arrangement entered into for the purpose of providing moneys to finance- (a) the designing and carrying out of the construction works; (b) the undertaking of any obligation imposed on that company by this Ordinance, the project agreement or the operating agreement; or (c) such other purposes as the Financial Secretary may, by prior notice in writing to the company concerned, permit,by means of any assignment by way of mortgage or other charge or similar arrangement of the rights granted to it under Part II: Provided that no such mortgage or charge in so far as it relates to such rights, shall be enforced, whether by order of any court or otherwise, except with the consent of the Governor in Council and in accordance with the terms of his consent. (2) Nothing in section 9 or subsection (1) shall apply to any mortgage, charge, assignment or other arrangement entered into- (a) by the Road Company, which secures any debt or obligation of that company, upon the right to receive the tolls under Part IX; or (b) by the Rail Company, which secures any debt or obligation of that company, upon the right to receive any payments under the operating agreement.(3) Where the enforcement of any mortgage or charge to which subsection (1) applies has the effect of transferring the franchise granted by section 4(1) or 5(1) from a person who was the Road Company or, as the case may be, the Rail Company, immediately prior to the transfer to any other person who thereby becomes the Road Company or, as the case may be, the Rail Company, the Secretary shall give notice thereof in the Gazette. (4) A notice under subsection (3) shall specify the name of such other person, the nature of the right transferred and the date of the transfer. (Enacted 1986) Cap 215 s 11 Directors of the Road Company PART IV PROVISIONS RELATING TO THE ROAD COMPANY AND THE RAIL COMPANY (1) A majority of the directors of the Road Company shall be persons who are ordinarily resident in Hong Kong. (2) The Governor shall have power, notwithstanding any provision of the Companies Ordinance (Cap 32) or any other law, the memorandum or articles of the Road Company or other instrument, to appoint 2 directors to the board of the Road Company. (Enacted 1986) Cap 215 s 12 Minimum paid-up share capital (1) On the road operating date the issued and fully paid-up share capital of the Road Company shall be- (a) if no assignment has taken place under section 7(1), not less than $1100000000; and (b) if such assignment has taken place, not less than $750000000.(2) On the road operating date the issued and fully paid-up share capital of the Rail Company shall be, if an assignment has taken place under section 7(1), not less than $350000000. (Enacted 1986) Cap 215 s 13 The Government's equity in the Road Company (1) The Government shall be entitled- (a) prior to the event described in paragraph (b), to hold 5 per cent of the shares; and (b) upon the opening for use by the public of a trunk road connection from the vicinity of Shatin passing through a tunnel under or in the vicinity of Tate's Cairn to East Kowloon, to hold an additional 2.5 per cent of the shares.(2) Within 14 days after the occurrence of a relevant event the Road Company shall procure the transfer of shares to the Government of sufficient shares to ensure that, upon such transfer, the Government holds the shares which, immediately after that event, it is by subsection (1) entitled to hold. (3) Shares transferred to the Government under this section shall be fully paid up and free from encumbrances and shall be held on behalf of the Government by the Financial Secretary Incorporated. (4) For the purposes of this section- (a) shares shall be deemed to be held by the Government notwithstanding that, after they have been transferred to the Government under this section, the Government may subsequently have disposed of them; (b) a "relevant event" takes place- (i) on the commencement of this Ordinance; (ii) at the time, prior to the event described in subsection (1)(b), when any shares additional to shares issued on or before such commencement are issued; (iii) upon the event described in subsection (1)(b) taking place; or (iv) on any change in the identity of the Road Company;(c) "shares" (股份) means the ordinary voting shares of the Road Company. (Enacted 1986) Cap 215 s 14 Tax provisions For the purposes of Part VI of the Inland Revenue Ordinance (Cap 112)- (a) the Road Company shall throughout the continuance of the franchise granted by section 4(1) be deemed to be the owner of and to have the relevant interest in the works which it has the right to keep in place under section 4(1)(c); (b) the Rail Company shall throughout the continuance of the franchise granted by section 5(1) be deemed to be the owner of and to have the relevant interest in the works which it has the right to keep in place under section 5(1)(b); (c) upon the assignment of the benefit of the franchise granted under section 5(1) to the Eastern Harbour Crossing Company Limited under section 7(1), any capital expenditure, as defined for the purposes of Part VI of the Inland Revenue Ordinance (Cap 112), incurred by the New Hong Kong Tunnel Company Limited (being then the Rail Company) on the works referred to in paragraph (b) shall be deemed to have been incurred by the Eastern Harbour Crossing Company Limited at the time of the assignment: Provided that any allowance granted under that Part in respect of the expenditure deemed to have been incurred shall be reduced by any allowance granted under that Part to any other person in respect of the same expenditure. (Enacted 1986) Cap 215 s 15 Construction works to be carried out at the expense of the Road Company PART V DUTIES OF THE ROAD COMPANY AND THE GOVERNMENT IN CARRYING OUT THE PROJECT (1) The Road Company shall, at its own expense, carry out the construction works in accordance with the project agreement and this Ordinance and within the period specified in section 17. (2) For the purposes of section 5(1)(a) any railway works constructed by the Road Company in pursuance of the duty imposed by this section shall be deemed to have been carried out on behalf of and for the benefit of the Rail Company, and nothing in subsection (1) of this section shall prevent the expense referred to in that subsection being apportioned between the Road Company and the Rail Company in such reasonable manner as they may agree. (Enacted 1986) Cap 215 s 16 Start of construction (1) The Road Company shall not commence the construction works before such date as may be agreed between the Director and the Road Company or, in the absence of agreement, as the Director may determine. (2) The Director shall cause a notice to be published in the Gazette specifying the date of commencement of the construction works as agreed or determined under subsection (1). (Enacted 1986) Cap 215 s 17 Period within which works must be completed (1) Subject to this section, the Road Company shall complete the construction works within 42 months from the start of construction or within such extended period as may be approved by the Governor in Council. (2) If the Road Company fails, or appears to be likely to fail, to complete the construction works within the period specified in subsection (1), the Governor in Council shall, in considering whether or not to exercise its powers under subsection (1), take into account the extent to which the construction works have been carried out and whether such failure was or is occasioned by circumstances beyond the control of the Road Company (the want of sufficient funds not being regarded as a circumstance beyond its control). (3) The Director may, by notice to the Road Company, allow such time additional to the time specified in subsection (1) as he may determine in the event of- (a) storm, flood, natural disaster or other similar event; (b) war, insurrection or riot; (c) the interruption of the works due to the non-availability of equipment or materials essential to the construction works or the interruption for reasons beyond the control of the Road Company of the supply of equipment or materials to the works; (d) any default or unreasonable delay by the Government or its agents in doing anything they are required to do by this Ordinance; (e) the undertaking by the Road Company at the request of the Government of any works which are not construction works at the commencement of this Ordinance, where such undertaking delays the carrying out of the construction works; (f) any direction under section 32(2) which is inconsistent with any approval or exemption previously given by the Director under Part VI; (g) any other event which, in the opinion of the Director, could not reasonably have been foreseen by the Road Company at the time when it entered into the project agreement,and he shall allow such time where this is required by the terms of any agreement between the Government and the Road Company for the execution of any works by the Road Company which are not construction works at the commencement of this Ordinance, and any period of time so allowed shall be deemed to extend the period specified in subsection (1) or, as the case may be, that period as extended under that subsection by the period so determined. (Enacted 1986) Cap 215 s 18 Determination of date of completion For the purposes of section 17(1) the date when the Road Company shall be deemed to have completed the construction works shall be either the road operating date or the rail operating date, whichever event last occurs. (Enacted 1986) Cap 215 s 19 Land required for the project (1) The Government shall, upon the start of construction or such other date, whether earlier or later, as may be agreed between the Road Company and the Director, permit the Road Company, its contractors and agents without charge to enter for the purpose of carrying out, and to carry out, the construction works- (a) the land where the construction works are to be undertaken; and (b) any land contiguous thereto, as agreed between the Road Company and the Director or, in the absence of such agreement, as the Director may determine, being land temporarily required to facilitate the undertaking of the construction works.(2) The Government shall, upon the start of construction or such other date as may be agreed between the Road Company and the Director, permit the Road Company to enter for the purpose of carrying out, and to carry out, the construction works, land other than the land referred to in subsection (1) on payment of such sum, and on such reasonable terms and conditions, as the Director of Lands may determine: Provided that in determining any such sum the Director of Lands shall be guided by the practice of the Government in relation to the making of similar land available to persons other than the Road Company. (Amended L.N. 291 of 1993) (3) Nothing in this section shall apply to any land which, under the project agreement, is to be obtained by the Road Company other than from the Government nor relieve the Road Company from making any payment it is required to make under section 20 in respect of land to which this section relates. (Enacted 1986) Cap 215 s 20 Liability of Road Company in respect of land made available (1) The Road Company shall be liable to the Government for- (a) all compensation payable, and all costs and expenses (including legal costs and expenses) incurred by the Government in- (i) resuming any land, or any easement or right therein, required for the purposes of the project; (ii) obtaining vacant possession of any such land, including all such compensation, costs or expenses which are payable under any Ordinance, or by reason of the order of any court, award of an arbitrator or by virtue of any agreement, composition or arrangement with any person, or for which the Government is otherwise liable, and whether the liability to pay such compensation, costs or expenses arose before or after the commencement of this Ordinance; and(b) all costs, expenses, and payments, whether referred to in paragraph (a) or not, incurred or made by the Government, which the Road Company has undertaken to refund to the Government under the project agreement or otherwise.(2) Any amount for which the Road Company is liable under subsection (1) shall become payable- (a) if liability arises prior to the road operating date, upon that date; and (b) if liability arises on or after the road operating date, and the amount of the liability is certified under section 78, upon presentation of the certificate to the Road Company.(3) For the purposes of subsection (1) the Government shall be deemed to have been liable to pay compensation where it has made payments of a character usually made by the Government in the case of land resumption or clearance, notwithstanding that the payments may have been expressed to be on an ex gratia basis or have been paid otherwise than by reason of a legal obligation. (Enacted 1986) Cap 215 s 21 Authorization under this Part sufficient authority to carry out works PART VI THE CARRYING OUT OF THE CONSTRUCTION WORKS (1) Subject to subsection (3) any construction works which may be carried out lawfully under this Part and in accordance with any approval or exemption thereunder may be carried out without further authority notwithstanding anything to the contrary in any Ordinance: Provided that nothing in this section shall authorize anything to be done in contravention of section 13 of the Summary Offences Ordinance (Cap 228). (2) Subject to subsection (3) the Buildings Ordinance (Cap 123) shall not apply in relation to the construction works. (3) The Secretary for Housing, Planning and Lands may, by notice in the Gazette, apply the Buildings Ordinance (Cap 123), or any provision thereof, to any of the construction works: (Amended 23 of 2002 s. 126) Provided that nothing in this subsection shall apply to any such works which are civil engineering works. (Enacted 1986) Cap 215 s 22 Road Company to submit a construction programme (1) As soon as practicable after the commencement of this Ordinance, the Road Company shall submit to the Director for his approval a programme for the carrying out of the construction works and the construction works shall be carried out in accordance with such programme as so approved. (2) The Director may approve or disapprove the programme submitted under subsection (1) or approve it in part and disapprove it in part. (3) The Road Company may at any time apply to the Director for a variation of the programme approved under subsection (2) and any variation approved by the Director under this subsection shall be deemed to form part of the programme approved under subsection (2). (Enacted 1986) Cap 215 s 23 No works to commence without authority Subject to sections 16 and 29, the undertaking of any part or component of the construction works shall not commence until- (a) its design has been submitted to the Director for his approval under section 25; (b) the design so submitted has been approved under section 25(3) or has been exempted from approval under section 25(1); (c) the method of its construction has been approved under section 27; (d) where the works are to be carried out by a contractor, the terms of any contract between the Road Company and such contractor have been approved under section 28 or do not require such approval by virtue of that section. (Enacted 1986) Cap 215 s 24 Road Company to submit designs (1) As soon as practicable after the commencement of this Ordinance, the Road Company shall submit to the Director for his approval under section 25 the design of the construction works. (2) Such design may relate to the whole of the construction works or may be prepared in divisions in accordance with subsection (3). (3) Where the design is prepared in divisions, each division shall relate to such part of the construction works and be prepared in such order as may be agreed between the Director and the Road Company or, in the absence of such agreement, as the Director may determine. (Enacted 1986) Cap 215 s 25 Approval and exemption of designs by the Director (1) Upon receipt of a design submitted to him for his approval under this section the Director may, by endorsement thereon, exempt that design from the provisions of this section. (2) Where the design is not exempted from the provisions of this section the procedures for the approval of that design by the Director shall be such as may be agreed between the Director and the Road Company or, in the absence of such agreement, as the Director may determine. (3) After due completion of the procedures referred to in subsection (2), or such of those procedures as the Director may consider appropriate in any particular case, the Director may approve or disapprove the design or may approve it in part and disapprove it in part. (4) The Director may defer consideration of a design under this section if the design forms part of, or is related to, any works to which a notice under section 30(3) or section 31 relates until such time as the notice is complied with to his satisfaction. (Enacted 1986) Cap 215 s 26 Alteration of approved or exempted designs (1) Any design approved under section 25(3) or exempted from approval under section 25(1) may be altered or added to with the approval of the Director and in accordance with the terms of that approval. (2) Any alteration or addition that is approved under this section shall be deemed to form part of the design so approved or exempted from approval. (Enacted 1986) Cap 215 s 27 Approval of methods of construction There shall be submitted, where practicable with any design submitted to the Director for his approval under section 25 and in any case prior to the undertaking of any part of the construction works to which the design relates, particulars of the methods of construction to be employed; and the Director may approve or disapprove those methods or may approve them in part and disapprove them in part. (Enacted 1986) Cap 215 s 28 Approval of construction contracts The Road Company shall not enter into any contract for the carrying out of the construction works or any part thereof unless the terms of the contract have first been approved by the Director: Provided that nothing in this section shall apply to- (a) the financial terms of the contract, or any terms which are otherwise unrelated to the nature or quality of the construction works to be carried out under the contract; or (b) any contract or terms which the Director may, by notice in writing to the Road Company, exempt from the requirements of this section. (Enacted 1986) Cap 215 s 29 Minor or incidental works may be carried out without submission of design The Director may authorize the Road Company to carry out any construction works which, in his opinion, are of a minor or incidental character without the submission to him of designs under section 25, and section 23 shall not apply in relation to such works. (Enacted 1986) Cap 215 s 30 Provisions supplementary to sections 22 to 29 Expanded Cross Reference: 22,23,24,25,26,27,28,29 (1) In the exercise of any discretion granted to him by sections 22 to 29 the Director shall have regard to- (a) the project; (b) sound engineering practice and other proper engineering matters; (c) the safety of persons and property,and also, in the case of the exercise by him of his discretion under sections 23 to 29, the construction programme approved by him under section 22. (2) Where the Director refuses, whether in whole or in part, any approval under the powers granted to him by sections 22 to 29 he shall give to the Road Company reasons in writing for that refusal and when he grants any approval he may do so subject to such terms, being terms reasonable in the circumstances, as he may specify in giving that approval. (3) Where it appears that the construction works or any part of them have been, or are being, carried out otherwise than as authorized by this Part or in accordance with the terms of any approval or exemption granted thereunder, the Director may, by notice in writing to the Road Company, require- (a) work on the construction works, or any part of them, to cease; or (b) the demolition of the construction works or any part of them, and their reconstruction in accordance with the provisions of this Part or such terms. (Enacted 1986) Cap 215 s 31 Other powers of the Director (1) The Director may by notice in writing to the Road Company require it to provide such information as may be specified in the notice about- (a) the progress of the construction works, or any part thereof; (b) the identity of any contractor or sub-contractor engaged in the project and the terms of any contract with him other than such terms as are described in proviso (a) of section 28; (c) any other matter relevant to the project,and the Road Company shall comply with the notice within the time specified therein, being a time reasonable in the circumstances. (2) The Director may in relation to the carrying out of the construction works by notice in writing to the Road Company require it to take such steps as may be specified in the notice for- (a) the safety of any works including the guarding and lighting thereof; (b) the avoidance or abatement, whether in part or in whole, of nuisances; (c) the protection of the environment; (d) the taking of samples of any materials used or to be used in the construction in such circumstances as may be specified in the notice and the taking of such subsequent steps and the supplying of such information in respect of those samples as may be specified; (e) preventing interference with the operation of the Mass Transit Railway, ensuring the safe operation of that Railway or otherwise for protecting that Railway; or (f) otherwise to ensure that all of the construction works are executed in a proper and safe manner,and it shall be the duty of the Road Company to comply with any such notice. (Enacted 1986) Cap 215 s 32 Precautions to be taken against the obstruction of shipping or aircraft (1) During the carrying out of the construction works the Road Company shall- (a) mark, keep open, and keep clear of obstruction caused by the carrying out of the construction works, such shipping channels as may be notified by the Director of Marine; (b) keep open and clear of obstruction caused by the carrying out of the construction works such approaches to Kai Tak Airport as may be notified by the Director-General of Civil Aviation. (Amended L.N. 326 of 2000)(2) If the Director after consultation with- (a) the Director of Marine, is of the opinion that any part of the construction works or plant associated therewith is obstructing any shipping channel notified under subsection (1)(a); or (b) the Director-General of Civil Aviation, is of the opinion that any part of the construction works or plant associated therewith is obstructing any approaches notified under subsection (1)(b), (Amended L.N. 326 of 2000)he may direct the Road Company to discontinue work on any such part of the construction works and to remove any such construction works or plant, either forthwith or within such time as he may specify, and work on such construction works shall not be resumed except with the prior permission of the Director and subject to such conditions as he may impose. (3) If the Road Company fails to remove any works or plant in accordance with a direction under subsection (2) the Director may do so. (4) Where the Director carries out any works under subsection (3), the cost of so doing shall be recoverable by the Government as a debt owing by the Road Company to the Government. (Enacted 1986) Cap 215 s 33 Restoration of sea-bed and works area (1) On the completion of the construction works, or as soon as is reasonably practicable thereafter, the Road Company at its own expense and to the reasonable satisfaction of the Director shall- (a) bring the sea-bed affected thereby into conformity with designs approved by the Director under section 25; (b) deal with land affected by the carrying out of the construction works in such way as may be required by such designs; and (c) restore all other land affected by the carrying out of the construction works as near as possible to its condition prior to the undertaking of those works.(2) If the Road Company fails to effect any works in accordance with subsection (1) the Director may effect the same. (3) Where the Director carries out any works under subsection (2), the cost of so doing shall be recoverable by the Government as a debt owing by the Road Company to the Government. (Enacted 1986) Cap 215 s 34 Diversion of cables, pipes etc. (1) This section shall apply where it is necessary or expedient to divert any utility to permit the carrying out of the construction works to proceed unimpeded. (2) The Director may at the request of the Road Company divert, or permit the Road Company at its own expense to divert, any utility that is under the control of the Government or any agency of the Crown, and no such utility shall be diverted by the Road Company without the authority of the Director. (3) Where the Director diverts a utility in response to a request under subsection (2), the cost of such diversion shall be recoverable by the Government as a debt owing by the Road Company to the Government. (4) The Director may, by notice in writing to the owner or person having control of any utility, order him- (a) to divert the utility in such manner as may be specified in the order; and additionally or alternatively (b) to render any cable, pipe, apparatus or thing forming part of such utility, or ancillary thereto, safe for diversion.(5) If the owner or other person fails to comply with any order under subsection (4) the Director may effect the diversion. (6) The costs incurred by any person in complying with a direction under subsection (4) shall be payable by the Road Company to that person in such amount as may be agreed between the Road Company and that person or, failing agreement, as may be determined by the Director. (Enacted 1986) Cap 215 s 35 Other obligations of the Road Company (1) The Road Company shall ensure that all fill for reclamation works undertaken in pursuance of the project is from a source, and of a quality, approved by the Director. (2) Subject to the Sand Ordinance (Cap 147), any spoil dredged from the sea-bed during the carrying out of the construction works shall be disposed of by the Road Company at its own expense by removing to such marine dumping ground or other place as the Director may direct. (3) Rock excavated for the carrying out of the construction works shall not be crushed into aggregates or aggregate derivatives for sale, or sold, without the prior approval of the Director and in accordance with the terms of such approval; any such terms may require payment to the Government, whether by way of royalty on the sale or otherwise, as a consideration for the grant of the approval. (4) The Road Company shall at its own expense make good all damage occasioned by the carrying out of the construction works to all sea-walls, public roads, storm drains, water mains or other public property in such manner as the Director may direct. (5) As soon as practicable after the date of completion as determined under section 18, the Road Company shall at its own expense supply the Director with as many sets (not exceeding 10) of the drawings of the construction works as constructed as the Director may require and in such form as he may require. (Enacted 1986) Cap 215 s 36 Defects PART VII CONTINUING OBLIGATIONS AND PROVISIONS IN RESPECT OF THE CONSTRUCTION WORKS: REGULATIONS (1) Subject to subsections (2) and (3) the Road Company shall be liable at all times until the expiration or revocation of the franchise granted to it by section 4(1) to make good any defect in the construction works as soon as practicable after the defect becomes apparent and to the reasonable satisfaction of the Director. (2) On and after the rail operating date and until the expiration or revocation of the franchise granted by section 5(1) the Rail Company shall be liable at all times to make good any defect in the railway works as soon as practicable after the defect becomes apparent and to the reasonable satisfaction of the Director. (3) Where the Rail Company is liable to make good any defect by reason of the provisions of subsection (2), the liability of the Road Company to make good any defect under subsection (1) shall not arise unless the Director is of the opinion that the Rail Company has failed or unreasonably delayed to discharge its obligations under subsection (2) in respect of those defects and he notifies the Road Company in writing of the defect and of such failure or delay. (4) The Director may, by notice in writing, require the Road Company or, as the case may be, the Rail Company, to effect such works as he considers necessary to make good any defect that it is liable to make good under this section and any damage to the construction works arising from such defect. (5) Nothing in this section shall- (a) impose any liability on- (i) the Road Company to make good any defect or damage arising from such defect which becomes apparent in the railway works after the expiration of the franchise granted to the Rail Company by section 5(1); or (ii) the Road Company or the Rail Company to- (A) discharge any obligation imposed on the Mass Transit Railway Corporation by the operating agreement; (B) undertake any work to remedy any defect, or damage to the construction works arising from such defect, beyond the work reasonably required to remedy such defect or damage; or (C) remedy any defect which does not, or is unlikely to, adversely affect the design life, operation, use or safety of the construction works; or(b) restrict or otherwise affect the obligations of the Road Company or the Rail Company under the operating agreement in respect of defects or repairs. (Enacted 1986) Cap 215 s 37 Repair of immersed tube and road works (1) The Road Company shall keep in a state of repair until the expiration or revocation of the franchise granted by section 4(1) and to the satisfaction of the Director- (a) the fabric of the immersed tube including all sealing elements and the common wall separating the road conduits from the railway conduits and the rock armouring; and (b) all works, whether within or outside the immersed tube, which it has the right to keep in place under section 4(1)(c).(2) The Director may, by notice in writing, require the Road Company to effect such repairs and alterations to the structures or works it is required by subsection (1) to keep in a state of repair as he considers necessary for the proper repair thereof and for the obviation of fire and other hazards therein. (3) Where in pursuance of the obligation imposed on it by subsection (1)(a), the Road Company carries out any works on the fabric of the immersed tube after the revocation or expiration of the franchise granted to the Rail Company by section 5(1), the Government shall be liable to pay to the Road Company one third of the costs reasonably incurred by the Road Company on those works. (4) Any sum payable by the Government under subsection (3) shall be paid out of general revenue. (Enacted 1986) Cap 215 s 38 Provisions supplementary to sections 36 and 37 (1) Where any works are effected by the Road Company or the Rail Company under section 36 or 37, the provisions of Part VI shall apply in respect of the carrying out of such works as though the same were the carrying out of the construction works with such modifications as the circumstances of the case may require or as the Director may determine and, in the case of works carried out by the Rail Company, as if that company were the Road Company and references in Part VI to the Road Company were construed accordingly. (2) The Director shall not exercise his powers under section 36 or 37 in such manner as would require the Road Company or, as the case may be, the Rail Company, to carry out any works to a standard which is substantially higher than that- (a) required by- (i) any relevant approval or exemption under Part VI; or (ii) standards generally prevailing,when the construction works were first carried out; (b) which may be reasonably justified having regard to the age of the construction works at the time when such works as so required are to be carried out.(3) If the Road Company or, as the case may be, the Rail Company fails to comply with any requirement of the Director under section 36 or 37 within a reasonable time after the receipt of notice of the requirement, the Director may effect the necessary works. (4) If at any time there exist, in the opinion of the Director, any circumstances requiring the immediate carrying out of any works which the Road Company or, as the case may be, the Rail Company is required by section 36 or 37 to carry out, he may require the Road Company or, as the case may be, the Rail Company, to effect the same forthwith or, if he thinks fit, he may forthwith effect the same with or without notice to the Road Company or, as the case may be, the Rail Company. (5) Subject to section 37(3), the expense of any works carried out under section 36 or 37 shall be borne by the Road Company or, as the case may be, the Rail Company (being the person under the duty to carry out those works) and, where any such works are effected by the Director, the expense thereof shall be recoverable from the Road Company or, as the case may be, the Rail Company by the Government as a debt owing by it to the Government: Provided that where section 36(3) applies the Road Company and the Rail Company shall be jointly and severally liable to the Government on such debt. (Enacted 1986) Cap 215 s 39 Closure of immersed tube (1) The Road Company may, and if required by the Director shall, close or partially close the immersed tube whenever this is necessary to enable any works to be effected by reason of any obligation imposed by this Part. (2) It shall be the duty of the Mass Transit Railway Corporation, when required by the Director, to give effect to such closure in so far as it affects the railway. (3) The Road Company shall not, except in an emergency, effect any such closure under subsection (1) without prior notification in writing to the Commissioner where any road traffic lane is to be closed. (4) Whenever a closure is effected under subsection (1) in pursuance of a requirement of the Director, the immersed tube or such part thereof as is affected shall not be reopened without the prior consent in writing of the Director. (Enacted 1986) Cap 215 s 40 Utilities through the immersed tube (1) Notwithstanding anything to the contrary in any other Ordinance- (a) no person other than the Mass Transit Railway Corporation may install any utility within the conduits of the immersed tube containing the railway lines without the consent of the Corporation and, in the case of installation by any person other than the Corporation or the Road Company, the further consent of the Road Company; and (b) no person other than the Road Company may elsewhere in the immersed tube install any utility without the consent of the Road Company.(2) The Road Company shall not give any permission for the purpose of subsection (1)(b) unless the Commissioner has first approved the giving thereof and the terms and conditions (other than provision as to charges) of the permission. (3) The Commissioner shall not give his approval under subsection (2) unless he is satisfied that the safety of persons using or employed in the vicinity of the immersed tube, and the passage of motor vehicles through the road tunnel, will not be prejudiced by such installation. (4) Where the Mass Transit Railway Corporation gives any permission for the purposes of subsection (1) it may do so subject to such terms and conditions as it may think fit to impose: Provided that nothing in this subsection shall authorize the Corporation to charge for such permission. (5) The Road Company and the Mass Transit Railway Corporation shall afford reasonable access to any utility in the immersed tube by the owner or person having the control of that utility. (6) References in subsection (1) to the installation of a utility by the Corporation or by the Road Company are references to the installation of that utility for the use by the Corporation or, as the case may be, by the Road Company. (Enacted 1986) Cap 215 s 41 Director may enter tunnel area and works area for certain purposes (1) The Director may at any time enter any place where construction works or other works undertaken in connection with the project have been or are being carried out- (a) to ascertain whether the construction works are dangerous or liable to become unsafe or dangerous; (b) to inspect or test any machinery, equipment or plant therein; (c) to ascertain whether the Road Company or the Rail Company is complying with the provisions of this Ordinance or the project agreement in relation to the construction or repair of the construction works; (d) to effect any works authorized under this Ordinance.(2) The Road Company, the Rail Company and the Mass Transit Railway Corporation shall afford the Director such facilities as he may require for the purposes of subsection (1). (Enacted 1986) Cap 215 s 42 Information to be supplied by the Road Company and the Rail Company to the Director For the purpose of enabling the Director to ascertain any arrangements which have been made or are about to be made by the Road Company or the Rail Company for the fulfillment of its obligations under this Part, the Road Company or, as the case may be, he Rail Company shall, when required by the Director, forthwith furnish him with such information as to any matter relevant to such arrangements as he may require. (Enacted 1986) Cap 215 s 43 Power to make regulations The Governor in Council may make regulations for all or any of the following matters- (a) the provision by the Road Company of adequate, efficient, safe and continuous facilities for the passage of motor vehicles through the road tunnel area; (b) the safety of persons using or employed in the immersed tube and road tunnel area, and, without prejudice to the generality of the foregoing in relation to fire hazards, for preventing any concentrations of carbon monoxide or other dangerous gases; (c) lighting, including emergency lighting, and visibility in the road tunnel area; (d) the noise level in the vicinity of any ventilation plant associated with the road tunnel; (e) the powers of the personnel provided by the Road Company for the control, restriction and safety of traffic in the road tunnel area; (f) the circumstances under and extent to which police officers may take over the control and restriction of traffic in the road tunnel area; (g) priority of vehicles in passage through the road tunnel area; (h) any records required to be kept by the Road Company in addition to those specified in section 53; (i) prescribing anything which under this Ordinance is to be or may be prescribed; (j) such other purposes as may be necessary or expedient to carry out effectively the provisions of this Ordinance. (Enacted 1986) Cap 215 s 44 Road operating date PART VIII THE ROAD TUNNEL (1) The road tunnel and its approach roads shall be opened to the use of the public on a date* determined by the Commissioner and notified by him in the Gazette. (* 21.9.1989-see G.N.(E.) 132 of 1989) (2) The date notified under subsection (1) shall be as soon as practicable after the Director has issued to the Commissioner and the Road Company a certificate stating that in his opinion the road tunnel and approach roads intended to be opened for public use are in a condition fit therefor. (Enacted 1986) Cap 215 s 45 Road Company to provide tunnel facilities Subject to this Ordinance, on and after the road operating date and, throughout the continuance under section 4(2) of the franchise granted by that section, the Road Company shall provide and operate, to the satisfaction of the Commissioner, adequate, efficient and safe facilities for the passage of motor vehicles through the road tunnel. (Enacted 1986) Cap 215 s 46 Right to use of tunnel facilities Subject to this Ordinance- (a) the road tunnel shall be used for the passage of motor vehicles upon payment of the tolls specified in the Schedule; and (b) the Road Company shall not without reasonable grounds prevent or refuse the use of the road tunnel for such purpose. (Enacted 1986) Cap 215 s 47 Control and safety of tunnel traffic (1) The Road Company shall, to the satisfaction of the Commissioner, provide personnel and facilities for the control and safety of motor vehicles and persons in the road tunnel area. (2) The provision of such personnel and facilities shall be at the expense of the Road Company. (Enacted 1986) Cap 215 s 48 Application of other laws (1) Save to the extent that they are inconsistent with any regulations under section 43 or by-laws under section 54, the provisions of the Road Traffic Ordinance (Cap 374) shall apply to the roads in the tunnel area as if they were roads within the meaning of that Ordinance. (2) The road tunnel area shall be a public place for the purposes of any law. (Enacted 1986) Cap 215 s 49 Operation of road tunnel area by Government (1) The Governor in Council may, if he is satisfied that it is necessary to do so in the interests of public security, order that the Government shall take over the operation of the road tunnel area or any part thereof together with such of the property of the Road Company as is necessary therefor, and continue such operation until the Governor in Council otherwise orders. (2) The Government shall pay to the Road Company for any loss or damage suffered by that company by reason of any order under subsection (1), such amount as may be agreed between the Government and that company, or in default of such agreement such amount as may be determined by arbitration under the Arbitration Ordinance (Cap 341). (3) Any period during which the Government operates the road tunnel area or any part of that area shall be computed in and not deducted from the periods specified in section 4(2). (Enacted 1986) Cap 215 s 50 Closure of road tunnel for safety reasons (1) The Road Company may, and if so required by the Commissioner shall, close or partially close the road tunnel to the use of the public whenever such action appears to be reasonably necessary for the safety of persons using or employed in the road tunnel area, for routine maintenance or for cleaning. (2) Save when required by the Commissioner to close or partially close the road tunnel, the Road Company shall notify the Commissioner forthwith of any closure unless the Commissioner, by reason of his having been informed in advance of such closure, has waived his right to such notification. (Enacted 1986) Cap 215 s 51 Advertising in road tunnel area (1) The Road Company may, with the prior approval of the Commissioner in writing, use, or permit the use of any part of the road tunnel area for advertising purposes on such conditions as to charges and otherwise as may be determined by the Company. (2) Part IX of the Public Health and Municipal Services Ordinance (Cap 132) shall not apply to the use of any part of the road tunnel area for advertising purposes. (3) The Commissioner shall not give his approval under subsection (1) unless he is satisfied that the safety of persons using or employed in the road tunnel area, and the passage of vehicles through the road tunnel, will not be prejudiced by such advertising. (Enacted 1986) Cap 215 s 52 Commissioner may enter road tunnel for inspection purposes (1) The Commissioner may, without payment of tolls or other charges to the Road Company, enter the road tunnel area at any time after the road operating date to ascertain whether the Road Company is- (a) providing adequate and efficient facilities for the safe and efficient passage of motor vehicles and the occupants thereof through the tunnel and for the control and safety of traffic in the road tunnel area; or (b) otherwise complying with the provisions of this Ordinance other than the provisions of Part VII.(2) The Road Company shall afford the Commissioner such facilities as he may require for the purposes of subsection (1). (Enacted 1986) Cap 215 s 53 Records and information (1) The Road Company shall maintain the following records- (a) an up to date set of drawings of the construction works, which shall include all such alterations and additions as may, from time to time, be made to the construction works; (b) the times during which each toll gate is open; (c) the number of motor vehicles using the road tunnel, specifying the different classes of such vehicles, their direction through the road tunnel, and providing continuous and cumulative figures thereof; (d) the amount collected as tolls and the numbers and prices of toll tickets (if any) issued; (e) all accidents and stoppages to traffic therein; (f) the personnel employed in connection with the operation of the road tunnel, including details as to the nature, location and times of such employment; (g) such other records as may be prescribed by regulations under section 43.(2) The Road Company shall permit the Commissioner to inspect, examine and copy all such records and any toll tickets and accounts kept by it in connection therewith, and shall afford facilities for such inspection, examination or copying as may from time to time be required by the Commissioner. (3) For the purpose of enabling the Commissioner to ascertain any arrangements which have been, or are about to be, made by the Road Company for the fulfilment of its obligations under this Part, Part IV or IX or any regulations under section 43 the Road Company shall, at the request of the Commissioner, forthwith furnish him with information relevant to such fulfilment, including information relating to the organization of the Road Company, as he may require. (Enacted 1986) Cap 215 s 54 Power to make by-laws (1) Subject to this Ordinance, the Road Company may make by-laws for all or any of the following matters- (a) order and safety, public health, and the prevention and abatement of nuisances in the road tunnel area; (b) the control, restriction and safety of traffic in the road tunnel area; (c) the regulation of the speed of traffic using the road tunnel area; (d) the regulation of the types, dimensions, condition and loading of vehicles which may use the road tunnel area; (e) the regulation of the use by vehicles in the road tunnel area of lights, horns, sirens and other equipment; (f) the regulation and prevention of the carriage into or through the road tunnel area of any offensive, noxious or dangerous goods; (g) the collection of tolls in respect of the use of the road tunnel; (ga) the regulation of the use of automatic toll collection facilities; (Added 49 of 1993 s. 2) (h) the purchase, issue and collection of toll tickets in respect of such use; (i) the towing away or removal of any vehicle or thing causing obstruction in the road tunnel area and the imposition of charges in respect of any such towage or removal and of any storage, detention or service of such vehicle or thing; (j) the protection of any property owned or controlled by the Road Company from damage or injury; (k) the employment and organization of personnel provided by the Road Company for the control, restriction and safety of traffic in the road tunnel area and approach roads; (l) any other conditions subject to which the road tunnel area may be used by the public for the passage of motor vehicles; and (m) any other matter relating to the control, operation and management of the road tunnel area which it is necessary or expedient to provide for.(2) Where a by-law made under subsection (1) provides for the issue of a permit for any purpose, the by-law may prescribe a fee to be paid in respect of such permit. (3) All by-laws made under subsection (1) shall be subject to the approval of the Legislative Council. (4) Any by-laws made under subsection (1) may provide that a contravention of specified provisions thereof shall be an offence and may provide penalties therefor not exceeding a fine of $2000. (5) The Road Company shall cause printed copies of all by-laws made under this section to be kept at the registered office of the Road Company and to be available for sale at a reasonable charge to every person applying therefor. (6) The Legislative Council may by resolution amend the figure specified in subsection (4). (Enacted 1986) Cap 215 s 55 Road Company to charge approved tolls for use of road tunnel PART IX COLLECTION OF TOLLS (1) Subject to this Ordinance, the Road Company may demand and collect tolls in respect of the passage of motor vehicles through the road tunnel. (2) The tolls that may be collected under subsection (1) shall be those specified in the Schedule. (3) The tolls specified in the Schedule may be varied- (a) by agreement between the Governor in Council and the Road Company; or (b) in default of agreement by submission of the question of the variation of tolls to arbitration under the Arbitration Ordinance (Cap 341) by either the Governor in Council or the Road Company.(4) On a submission to arbitration under subsection (3), the arbitrators shall be guided by the need to ensure that the carrying out by the Road Company of its obligations, or the exercise of its rights, under this Ordinance is reasonably but not excessively remunerative to the Road Company, having regard to- (a) any material change in the economic conditions of Hong Kong since the enactment of this Ordinance or, as the case may be, since tolls were last determined under this section; (b) the dismissal of any appeal by the Road Company made under section 75; (c) any material change in any other circumstances affecting the exercise by the Road Company of its rights under the franchise granted by section 4(1); (d) the effect of the introduction of, or alteration in, any tax or levy imposed on the use of the road tunnel; (e) the principle that tolls or