Following is a question by the Hon Ip Kwok-him and a reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (June 15):
At present, in districts where private buildings are in great numbers, such as Wan Chai and Mong Kok, etc., the advertisement signboards overhanging outside quite a number of buildings are huge in size and they are as high as the buildings. In many cases, the signboards are only owned by some households or even one particular household in the building concerned. However, under the existing legislation, erecting overhanging signboards outside buildings is not subject to regulation by the Deed of Mutual Covenant, nor does it require the approval of the owners' corporations (OCs). The Buildings Department, which is responsible for vetting and approving applications for erecting such signboards, stresses that in vetting and approving such applications, it only takes into account whether the signboards will affect the structural safety of the buildings. In this connection, will the Government inform this Council:
(a) whether, at present, there are avenues or government departments which can effectively prevent the erection of overhanging signboards outside buildings without the consent of other owners of the buildings; if so, of the details;
(b) whether it has considered amending the existing legislation to address the above situation, so as to safeguard the rights of other owners of the buildings; if it has, of the details; if not, the reasons for that; and
(c) given that while the aforesaid signboards are only owned by individual households, the owners of the entire buildings concerned have to collectively bear the removal costs in the event that the signboards are found to be illegal and have to be removed, and the OCs concerned can only resort to civil litigation to recover the removal costs from owners who are not willing to pay such costs, whether the Government has examined if there are ways to change such a situation; what assistance government departments can provide in respect of such disputes?
The Hon Ip Kwok-him's questions touch upon both building safety and building management issues, therefore the Secretary for Home Affairs and I will answer Members' questions today.
Any person who carries out buildings works, including erection of signboards, in the common part of a private building shall ensure that the relevant works comply with the requirements under all the current statutory provisions and the legal documents applicable to that common part.
The Buildings Ordinance (Cap. 123) (BO), administered by the Buildings Department (BD), aims to regulate the planning, design and construction of buildings and building works, and prescribes the standards regarding structural and fire safety of buildings in order to safeguard the safety of the public. Erection of signboards on external walls of buildings is a kind of building works which shall be regulated under the BO. In this respect, the BD has issued a practice note to specify the display area, spacing, position, material and structural safety standards of the signboards erected on external walls of buildings.
On the other hand, a deed of mutual covenant (DMC) demarcates the rights, benefits and responsibilities, etc. amongst property owners. The administration of a DMC rests with the parties to the contract and the Government is not a party to the contract. If a person intends to construct or hang a signboard on an external wall, he should carefully peruse the relevant land lease and DMC to ensure that there will not be any contravention of the relevant provisions. If queries are encountered, he should seek legal advice. Whether the erection of a signboard in the common part of a building will be governed by the DMC depends on the provisions in the DMC concerned. Therefore, the situation that "overhanging signboards outside buildings is not subject to regulation by DMC" as mentioned in the question could not be concluded in an indiscriminating manner.
Section 14(2) of the BO stipulates that neither the approval of any plans nor the consent to the commencement of any building works from the Building Authority shall be deemed:
(a) to confer any title to land;
(b) to act as a waiver of any term in any lease or licence; or
(c) to grant any exemption from or to permit any contravention of any of the provisions of the BO or of any other enactment. In other words, any approval or consent given by the Building Authority in accordance with the BO will, generally speaking, not affect the implementation of DMC.
My reply to the three-part question is as follows:
(a) Any person who intends to erect a signboard on an external wall of a building should, in addition to obtaining approval of plans and consent to commence works from the Building Authority, ensure that the works will not be in breach of the provisions in other relevant Ordinances and legal documents (including the DMC concerned). The BD has reminded the parties concerned in the practice note related to erection of signboards that it is necessary to seek the consent of the relevant building owners or owners' corporation (OC) separately, as the case may be, for erection of signboards.
If the plans for erection of a proposed signboard comply with the requirements of the BO, the BD will approve the plans pursuant to the Ordinance. If the proposed signboard is to be erected on a communal external wall of the building, the BD, at the time of approving the plans, will notify the OC, mutual aid committee or management company of the building concerned.
Besides, if a proposed signboard comes under the works of the Minor Works Control System (MWCS), in the other matters to note shown on the specified forms for carrying out minor works, the BD also reminds the party who intends to arrange for the carrying out of signboard works; the prescribed building professionals; and the prescribed registered contractors, etc. that if the minor works concerned involve the common part of a building, they should pay attention to the provisions in the DMC of the building and consult the co-owners, OC and/or building management company before commencement of the works. Upon receipt of submission of minor works in respect of a signboard, the BD, when issuing confirmation letter, will deliver a copy of the acknowledgement letter to the OC of the building concerned.
The various arrangements mentioned above enable the owners/OC of the building concerned to be notified of the proposed signboard works. If the owners/OC have different views towards the proposed signboard works, they may follow up timely the relevant matters with the person who has proposed to erect the signboard.
(b) and (c) To tackle unauthorised signboards, the BD, pursuant to the provisions in section 24(2)(c) of the BO, issues removal orders to the persons who shall be responsible for removing the unauthorised signboards concerned. Pursuant to the provisions in section 24(2)(c)(i) of the BO, if the relevant signboard has been erected or is being erected for a person (the signboard owner), a removal order shall be served on the signboard owner. If the signboard owner cannot be found, the BD will, pursuant to the provisions in section 24(2)(c)(ii) of the BO, serve a removal order on the person who would receive any rent or other money consideration if the signboard were hired out. Only if the persons referred to in section 24(2)(c)(i) and section 24(2)(c)(ii) of the BO cannot be found, the BD, pursuant to the provisions in section 24(2)(c)(iii) of the BO, will then serve a removal order on the owner of the land or premises on which the signboard has been erected. Therefore, generally speaking, if the signboard concerned is only owned by an individual, the BD will only require that person to remove the signboard.
Regarding the handling of dangerous or abandoned signboards, the BD will, pursuant to section 105(1) of the Public Health and Municipal Services Ordinance (Cap. 132), issue "Dangerous Structure Removal Notices (DSRNs)" to the owners of the signboards to require removal of the signboards concerned. In case of emergency, the BD will initiate to remove dangerous signboards immediately so as to get rid of the imminent or potential danger caused to the public by such signboards, and recover the removal costs from the owners of the signboards afterwards. Therefore, if an OC or an individual household of a building is not the owner of a dangerous or abandoned signboard, the DSRN issued by the BD normally would not involve the OC concerned or the individual household.
I must point out that building owners and OCs have the ultimate responsibilities to properly manage the common parts (including external walls of buildings) of their buildings. As I have just mentioned, a DMC demarcates the rights, benefits and responsibilities, etc. amongst property owners. It is a private contract amongst the property owners. The administration of a DMC rests with the parties to the contract and the Government is not a party to the contract. For signboards erected on common external walls of buildings without the consent of the building owners/OCs, the owners/OCs can take appropriate follow-up actions according to the provisions in the DMC. If the owners/OCs require professional advice to assist them in handling the relevant matters, they may consult their consultants or approach the Property Management Advisory Centres of the Hong Kong Housing Society to seek assistance.
However, we understand the concerns over signboards by the Hon Ip and building owners. On the condition that the principles of the BO will not be contravened, we are willing to explore if there are other measures to assist owners/OCs to deal with the signboards erected on external walls of buildings. I hope Members would understand that there will be quite a number of difficulties to be overcome in the exploration process, e.g. whether the Building Authority is the appropriate (and empowered) body to step in the dispute between an OC and a signboard owner given the legislative intent of the BO to safeguard building safety. If a signboard owner is mandated to obtain the consent of the owners of the common part prior to erection of signboard, there may be tremendous implementation difficulty if the building has no OC or the OC is inactive. However, we are willing to listen to suggestions and views on this issue from various sectors.
Thank you, President.
Ends/Wednesday, June 15, 2011
Issued at HKT 13:12