LCQ13: Enforcement against unauthorised building works
Following is a question by the Hon Ronny Tong and a written reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today (December 5):
The media have uncovered one after another cases of unauthorised building works (UBWs) being found in the residences of the Chief Executive (CE) and certain politically appointed officials. On the 23rd of last month, CE released a written statement to give an account of the problem of the UBWs in his mansion, and disclosed that he had found in October last year that the laundry room, part of the storeroom and the servant's room on the lower ground floor of House 4 had been expanded before he purchased the property, and the extension area was about 200 square feet. He demolished the extension parts in November last year and sealed it with a brick wall. Separately, in July last year, the media uncovered that there were UBWs in a residential unit owned by the Secretary for Commerce and Economic Development (SCED) at MacDonnell Road. It has been reported recently that SCED had obtained the approval from the Buildings Department (BD) for retaining part of the UBWs and converting it into a balcony under a "remedial proposal" without the requirement to demolish the UBWs and restore the unit. In this connection, will the Government inform this Council:
(a) whether BD has adopted an enforcement policy of "remove first and submit building plans later" on UBWs (ie the owners concerned are required to first demolish the UBWs and restore the unit before they may submit applications and plans to BD for alteration works) applicable to all; if so, why BD has handled the UBWs in the properties owned by CE and SCED in a way different from other UBWs; if there is no such enforcement policy, whether BD should, in accordance with the prevailing policy, require CE to first demolish the unauthorised area and restore the place before applying to seal the storeroom with a brick wall; whether BD will assess if CE has contravened the relevant requirements of the Buildings Ordinance (Cap. 123) by failing to handle the unauthorised area in accordance with the procedure;
(b) whether the staff of BD had suspected in the site inspection of CE’s mansion on June 22 this year that there might be an extension part behind the brick wall of the storeroom on the lower ground floor of House 4; if they had, why they have not taken any follow-up actions; if not, of the reasons for that;
(c) given that it has been reported that SCED has proposed a "remedial proposal" in respect of the UBWs in his unit at MacDonnell Road, under which he may retain the UBWs and is not required to comply with the requirement of "remove first and submit building plans later", whether such kind of "remedial proposals" is applicable to all people; if so, of the criteria adopted for approving the "remedial proposals", including the types of UBWs to which the criteria apply; whether BD has made public the details of the criteria; if not, of the reasons for that; if the "remedial proposals" are not applicable to all people, the reasons for that;
(d) whether BD will issue a removal order to an owner before he submits a "remedial proposal" in respect of UBWs; if not, of the reasons for that; if it will, in cases where the legitimate floor area of an unit has increased after the completion of the alteration works under the "remedial proposal" approved by BD, whether the removal order issued is still valid; if it is invalid, of the reasons for that; and
(e) whether BD had already issued a removal order to SCED before he submitted to BD the "remedial proposal" in respect of the UBWs in his unit; if so, of the progress in enforcing the removal order and the follow-up actions taken by BD; of the legitimate floor area added to that unit upon the completion of works under the "remedial proposal" submitted by SCED, and whether the removal order is still valid; if not, of the reasons for that?
The Government attaches great importance to building safety. In handling unauthorised building works (UBWs), the Buildings Department (BD) has been following the principle of acting in accordance with the law and being impartial to all to take appropriate actions pursuant to the Buildings Ordinance (Cap. 123) (BO) and the prevailing enforcement policy.
Under the established procedures of the BD, if there are confirmed actionable UBWs after inspection, and the UBWs have no imminent danger and the case does not involve emergency, BD will issue an advisory letter to the owner, advising him to rectify the irregularities as soon as possible. If the owner is not able to commence the rectification works within the specified period, BD will issue a statutory order requiring the owner to carry out the necessary works to rectify the situation, and register the order in the Land Registry (commonly known as "imposing an encumbrance"). BD will consider instigating prosecution actions against owners who fail to comply with the statutory orders. Regarding the non-actionable UBWs, BD will, depending on the situation, serve advisory letters or warning notices requesting the owners to remove the UBWs voluntarily.
There are different requirements on rectification works under the BO. Some works are exempted works which may be carried out without the need for making application to BD. Some works fall under the scope of the Minor Works Control System; depending on the type of works, reports may be submitted to BD after the works have been carried out. Some works require the prior approval from BD before the works are carried out. In gist, the carrying out of different rectification works is subject to different requirements.
My reply to the five-part question is as follows:
(a) and (b) As mentioned above, BD has been following the principle of acting in accordance with the law and being impartial to all in taking appropriate actions pursuant to the BO and the prevailing enforcement policy. We have also reiterated that BD will take appropriate enforcement actions in an impartial manner. BD will not make any special arrangements for enforcement actions because of the identity of the owner. In gist, BD will not be particularly stringent or lenient in its enforcement actions because the owner is a senior Government official or celebrity.
In respect of the floor space on the lower ground floor of House 4 at No.4 Peel Rise as mentioned in the question, BD conducted on-site inspection on June 26 this year. At that time, BD did not identify any "unauthorised servant's room" as reported by the media or new UBWs, but noticed that the position of part of the external wall of the original store room did not match with that shown on the original approved plan. In accordance with the established practice, BD issued a letter to the owner and the authorised person (AP) on June 27, requesting them to provide information on the construction and purpose of the wall concerned. BD had thereafter issued three written reminders to the AP urging him to provide the information. On November 23, the owner issued a statement, which included information on the floor space on the lower ground floor of House 4. BD conducted on-site inspection on the first working day that followed (ie November 26), and immediately requested the AP appointed by the owner to provide information and arrange for the opening up of that external wall as soon as possible for detailed inspection. During BD's subsequent site inspection on November 29, the external wall had been opened up with an entrance of a size similar to that of a door, and BD staff identified that there was a floor space behind the external wall. After the inspection, BD had confirmed that the floor space concerned was an actionable UBW and issued an advisory letter to the owner on December 3, advising him to remove the UBW as soon as possible. BD staff will continue to analyse and assess the information obtained in the inspection and follow up with the AP appointed by the owner with a view to determining the necessary enforcement actions.
(c), (d) and (e) Regarding the UBW case in the property at 4/F, 44D MacDonnell Road as mentioned in the question, according to the inspection by BD staff, the following UBWs had been carried out in the premises:
(i) erection of a balcony enclosed by window wall and metal railing from the external wall of the living room; and
(ii) extension enclosed by solid wall and window wall from the external wall of bedroom.
After BD had issued an advisory letter to the owner in August 2011 in accordance with the established practice, the owner appointed an AP to follow up the case. In April 2012, BD accepted the remedial proposal submitted by the AP for carrying out the following remedial works:
(i) removing the existing window wall and metal railing of the extended balcony, erecting a new glass partition wall with door at the originally approved position of the external wall of the living room, and erecting a new glass balustrade at the outer edge of the balcony; and
(ii) removing the existing window wall of the extension at the bedroom and erecting a new window wall with the function of protective barrier.
According to the information provided by the AP, extended balconies of the same design had been constructed at the position of the living room of the flat units above and below the subject premises, with planters attached to the parapet walls of these balconies; but there was no planter at the extended balcony of the subject premises on 4/F at No. 44D. As such, the remedial proposal submitted by the AP did not involve any alteration of a so-called planter into a balcony or part of the living room.
BD will check the approved plans of the buildings in handling UBW cases. If the works are not shown on the approved plans, and such works are not exempted works or designated minor works items carried out under the simplified requirements of the Minor Works Control System, they will be regarded as UBWs. Under the BO, BD has no power to approve UBWs that have been completed. Owners intending to carry out the works after completion of the removal works may make application to BD in accordance with the BO. As the case mentioned in the question involves special circumstances, BD has been taking follow-up actions in accordance with the established practice for handling such similar circumstances as mentioned below.
When implementing large-scale operations (LSOs) on the removal of UBWs in the past, BD came across cases where the owners requested it not to take enforcement actions against UBWs. The structures involved in these cases were already in existence when the owners acquired the premises as first-hand owners from the developer, and such structures were not shown on the approved plans. The owners had not carried out any addition and alteration works after the issuance of occupation permit. Examples of these structures include cantilevered projecting structures such as balconies or planters attached to the external walls of buildings or structures situated at such inconspicuous locations as light wells and re-entrances of buildings. In a number of LSOs on the removal of UBWs, there were also cases of owners or owners' corporations lodging appeals against the removal orders issued by BD, involving structures attached to the external walls of the buildings, and such structures were not shown on the approved plans. The ground of the appellants' appeals was that these structures were already in existence when they acquired the premises from the developer. In a judicial review case involving the BO last year, the Court held that the Appeal Tribunal (Buildings) should not dismiss the appeals by the appellants without first determining whether the balconies concerned were carried out at the same time as the building was erected.
In the light of the above considerations, BD has reviewed similar situations and formulated a practice for handling this kind of cases. According to the prevailing practice, if there is information showing that the UBWs were constructed by the developer or contractor for the whole building before occupation of the building, BD will consider whether to take enforcement actions against the UBWs having regard to the actual circumstances of the UBWs in the building, background information on the building and the prevailing UBW enforcement policy. While BD may withhold enforcement actions against the UBWs after assessing the actual circumstances, the structures are still regarded as UBWs. BD will issue statutory warning notices under the BO and register the notices against the ownership records in the Land Registry. Besides, BD will record the UBWs concerned and may, where necessary owing to changes in the circumstances, consider taking enforcement actions requiring removal of the UBWs.
In respect of the UBW case in the property at 4/F, 44D MacDonnell Road, BD will continue to follow up on the extended balcony and extension of the bedroom in accordance with the BO and the prevailing UBW enforcement policy, as well as the established practice for handling similar situations as mentioned above.
Ends/Wednesday, December 5, 2012
Issued at HKT 15:58