Following is a question by the Dr Hon Priscilla Leung and a written reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today (November 21):
Early last year, I received complaints from residents of Whampoa Garden alleging that the ground floor access to a lift (lift no. 11) for use by persons with disabilities (PWDs), which was situated in Phase 7 of the housing estate, had been blocked with a metal gate by a shop at that location. This situation had caused great inconvenience to the elderly with mobility problems and PWDs. In reply to me regarding the complaints, the Buildings Department (BD) indicated that it had written to the property owner concerned on November 23, 2011 to advise it to rectify the aforesaid irregularities. As the situation had not improved, BD issued a statutory order on January 9, this year to the property owner ordering it to make rectifications within 60 days. During a visit to the aforesaid location made by me and BD's officers in August, it was found that the property owner had not yet complied with the statutory order. In this connection, will the Government inform this Council:
(a) of BD's procedures for handling complaints about unauthorised building works received from members of the public; how BD will follow up the situation of property owners failing to comply with statutory orders within the specified period; whether the authorities will institute prosecutions against and impose additional penalties on those property owners who have all along failed to comply with statutory orders; if so, of the details; if not, the reasons for that;
(b) given BD's indication in its written reply to me on January 10, this year that "[u]pon expiry of the deadline of the order, BD will send its staff to conduct inspection again. If the property owner concerned still fails to comply with the requirements in the order, BD will take further law enforcement action by instituting prosecution against the property owner", but up to August the aforesaid property owner had still failed to rectify the irregularities, whether the authorities have instituted prosecution against it; if not, of the reasons for that; and
(c) of the latest development of the aforesaid case; whether it has assessed if the irregularities in the aforesaid case contravene the provisions in the Disability Discrimination Ordinance (Cap. 487); if the assessment outcome is in the affirmative, how the authorities will follow up the matter?
The Buildings Ordinance (BO) aims to regulate the planning, design and construction of buildings and associated works on private land and, for this purpose, to prescribe building standards regarding safety, sanitation and the environment. Among the regulations under the BO, the Building (Planning) Regulations set out the design requirements for the provision of barrier-free access and facilities to meet the needs of persons with a disability.
My reply to the three-part question is as follows:
(a) Upon receipt of complaints concerning unauthorised building works (UBWs) from the public, the Buildings Department (BD) will deploy its staff to conduct site inspection and investigation, and then take appropriate enforcement actions in accordance with the prevailing enforcement policy against UBWs. In the case of an actionable UBW, under normal circumstances, the BD will issue an advisory letter to the party concerned to require him to rectify the irregularity as soon as possible. If the irregularity is not rectified, the BD will, after obtaining relevant ownership information, issue an order to the owner under section 24(1) of the BO to require him to remove the UBW within a specified period, and register the order in the Land Registry. Generally, the BD will give the owner 60 days to comply with the order. If the owner encounters difficulty in complying with the order and applies for an extension of time, the BD will consider whether approval should be granted depending on the circumstances of individual cases. If the owner concerned fails, without reasonable excuse, to comply with the order upon expiry of the specified period or extended period, the BD will issue a warning letter to the owner. If the owner still fails to comply with the order as soon as possible, the BD will instigate prosecution. Under the BO, any person who, without reasonable excuse, fails to comply with an order served on him under section 24(1) shall be liable on conviction to a fine of $200,000 and to imprisonment for one year; and to a fine of $20,000 for each day during which it is proved to the satisfaction of the court that the offence has continued.
(b) Regarding the case of Site 7 of Whampoa Garden as mentioned in the question, the BD promptly deployed its staff to conduct an inspection on November 4, 2011 upon receipt of a report on November 1, 2011. It was found that the doorway at the ground floor (G/F) lobby of Cargo Lift No. 11 had been blocked by a fixed timber panel. As shown on the approved plan, that lift was installed to be used by persons with a disability for transit between the G/F shopping arcade and the basement car park. As found during the inspection, apart from the enclosure works at the doorway on the G/F, the lift was also reprogrammed which rendered the G/F not accessible by the lift.
The enclosure works by the fixed timber panel had blocked the access for persons with a disability to the G/F. Such blockage was in contravention of the Building (Planning) Regulations which stipulate that buildings shall be designed to facilitate the access to and use of the buildings and their facilities by persons with a disability. On November 23, 2011, the BD issued an advisory letter to the party concerned. After that, the BD issued a removal order to the owner on January 9, 2012 under section 24(1) of the BO requiring the owner to commence the rectification works within 30 days, and to complete such works within 60 days, from the date of the order.
Upon expiry of the period specified in the order, the BD deployed its staff to conduct an inspection at the above premises on March 12, 2012. It was found that the unauthorised enclosure works by the fixed timber panel had been removed but a double-leaf door was erected at the doorway and locked. As assessed by staff of the BD at that time, the locked double-leaf door would still obstruct persons with a disability from using the G/F access leading to the lift. Therefore, the BD issued a warning letter to the owner on March 14, 2012, indicating that prosecution would be instigated for its failing to fully comply with the order. Subsequent inspection by staff of the BD also revealed that a roller shutter was installed at the side of the doorway facing the lift, obstructing the access for persons with a disability at the lift lobby.
Having issued the warning letter, the BD proceeded to seek legal advice on the prosecution case. According to the advice, the order in question had been complied with because the owner had removed the enclosure works by the fixed timber panel at the lift lobby as per the requirements of the removal order issued on January 9, 2012. The BD has therefore withdrawn the order. As regards whether locking the double-leaf door, installing the roller shutter and reprogramming the landing floors of the lift involved UBWs, the BD is now taking further follow-up actions including seeking legal advice.
(c) According to the Labour and Welfare Bureau, the Equal Opportunities Commission (EOC), which enforces the Disability Discrimination Ordinance, has received a complaint about the case and completed an investigation. Having considered the ownership of the concerned location, the right of tenants and public right of usage, the EOC found that the subject dispute on right of access did not involve unlawful disability discrimination.
Ends/Wednesday, November 21, 2012
Issued at HKT 14:31