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LCQ4: Handling of unauthorised building works

Following is a question by the Hon Paul Tse and a reply by the Secretary for Development, Mr Michael Wong, in the Legislative Council today (January 24):

Question:

The Buildings Department (BD) has adopted a zero-tolerance approach for unauthorised building works (UBWs) in recent years. In old districts such as Kwun Tong, Wong Tai Sin, Ngau Tau Kok, San Po Kong and Lei Yue Mun, a large number of commercial and residential buildings are suspected of having UBWs, with numerous instances of BD issuing removal orders for UBWs. For example, BD has issued removal orders in respect of the unauthorised rooftop structures in a number of buildings located on Yuet Wah Street in Kwun Tong, in which many elderly property owners have lived for the past few decades. Also, BD has ordered the owners of some seafood restaurants in Lei Yue Mun to remove the UBWs there, which were erected for protection against typhoons and waves and for showcasing the fishing village's characters, thus reverting to the original primitive squatter structures. On the contrary, when she attended this Council's Question and Answer Session held earlier this month, the Chief Executive (CE) called on the various sectors of the community to adopt a forbearing attitude towards the UBWs found in the residence of the newly appointed Secretary for Justice (SJ). Some media have described this approach of handling the incident as "giving officials a full licence to set a fire while forbidding the common people even to light a fire for their lamps". CE also pointed out that the policy for handling UBWs had changed continuously in the past decade, and that the authorities treated UBWs involving government officials and members of the public under the principle of equal footing and fairness. In this connection, will the Government inform this Council:

(1) whether it has assessed if there is any difference in terms of the attitude and practices adopted when CE and the relevant government departments dealt with the UBWs found in the residences of the former CE and senior government officials, and the cases of alleged UBWs in the properties of members of the public (in particular the unauthorised rooftop structures on Yuet Wah Street);

(2) whether it has assessed if members of the public and shop operators could, on grounds of insufficient alertness and sensitivity, request the authorities to review afresh their UBW cases; if it has assessed, of the outcome; if not, the reasons for that; and

(3) whether BD will, in response to CE's calling on the adoption of a forbearing attitude in dealing with the UBW issue involving SJ's residence and as it has been reported that it would take BD 100 years to complete the handling of the UBW cases which have accumulated to over 800 000, review and revise the relevant policy; if so, of the details; if not, the reasons for that?

Reply:

President,

The Government has always attached great importance to building safety of Hong Kong. When formulating and implementing policy in dealing with unauthorised building works (UBWs), the Government has always put building safety in the first place, and will adopt a pragmatic approach to handle the matter impartially according to the priority and category of the UBWs concerned. The Building Authority (i.e. the Director of Buildings) is responsible for taking enforcement actions against UBWs in accordance with the Buildings Ordinance (Cap. 123) (BO). We have formulated a clear enforcement policy against UBWs. The Buildings Department (BD) has been handling UBWs cases in accordance with the BO and the enforcement policy under the principles of acting in accordance with the law and impartiality.

BD has adopted a "risk-based" approach in determining the priority of enforcement actions against UBWs and targeted the "actionable" UBWs for actions.  According to the enforcement policy against UBWs adopted in April 2001, "actionable" UBWs include seven categories, including (1) UBWs constituting obvious hazard or imminent danger to life or property; (2) UBWs newly constructed or under construction; (3) UBWs constituting serious hazards or serious environmental nuisances; (4) major individual items; (5) items in individual buildings with extensive UBWs; (6) UBWs in buildings targeted for  large-scale operations (LSOs); and (7) UBWs in environmentally friendly features granted with gross floor area concessions. To strengthen enforcement against UBWs, we extended the coverage of "actionable" UBWs to include all UBWs in roof-tops, podiums, yards and back-lanes of the buildings in April 2011. The expanded scope of "actionable" UBWs has been adopted until now.

The BD takes enforcement actions against "actionable" UBWs. Specifically, unless the owner proactively handles the relevant UBWs, say by appointing an authorised person (AP) to submit rectification proposals, BD will issue a removal order requiring the owner concerned to carry out works to remove the UBWs within a specified period of time, and register the removal order in the Land Registry (LR). If the owner does not rectify the situation within the period of time specified in the removal order without reasonable excuse, BD will consider instigating prosecution actions against the owner concerned and may arrange government contractor to carry out necessary removal or rectification works, and recover the cost of works, supervision charge and surcharge from the defaulted owners.

Regarding "non-actionable" UBWs, BD will, depending on the situation, serve advisory letters or warning notices requesting the owner to remove the UBWs voluntarily. If the owner fails to remove the specified UBWs in the warning notice by the date specified therein, BD will send the warning notice to the LR and register it in the title records of the subject premises. The warning notice will only be written off upon removal of the UBWs by the owner.

The policy and stance all along adopted by BD in its enforcement against UBWs is to require the owner to rectify the irregularities as soon as practicable. Under normal circumstances, BD will not initiate criminal investigation into whether there have been contraventions of the BO. However, if there is information showing that registered persons under the BO are suspected to be involved in the erection of UBWs, or that the registered persons knowingly submit misrepresented documents to BD, etc., BD will duly follow up the case, including initiating criminal investigation.

In consultation with BD, my reply to the three-parts of the question is as follows:

 (1) In handling matters relating to UBWs, BD has been following the principles of acting in accordance with the law and impartiality, and takes appropriate actions pursuant to the BO and the prevailing enforcement policy. In accordance with the established practice adopted since mid-2011, if the owners involved in the UBWs cases under media inquiry and report are senior government officials or community celebrities, BD will accord priority in carrying out site inspection with a view to investigating if the UBWs in fact exist so as to clear any public concerns as soon as practicable. If any UBWs are identified in the site inspection, BD will take appropriate actions in accordance with the BO and the prevailing enforcement policy in an impartial manner and will not adopt different enforcement standards because of the identity of those involved.

We must reiterate that BD colleagues have all along been upholding their professionalism and independence, and taking appropriate actions in accordance with the BO and the prevailing enforcement policy.

 (2) and (3) The prevailing enforcement policy against UBWs has been put in place since April 2011. In view of the sheer amount of UBWs, the relevant policy has always upheld the "risk-based" principle and suitably accord enforcement priorities. As mentioned in Part 1 of my reply, in handling every single UBWs case, BD has been taking appropriate enforcement and follow-up actions in accordance with the BO and the prevailing enforcement policy against UBWs impartially. If "actionable" UBWs under the prevailing UBWs enforcement policy are identified upon site inspection, irrespective of whether the owner is aware of the existence of UBWs in his or her premises, BD will issue a removal order to the owner requiring removal of the UBWs within a specified period of time, unless the owner concerned proactively deals with the relevant UBWs, say, by appointing an AP to submit rectification proposals. In the past three years (i.e. from 2015 to 2017), on average, BD issued about 13 000 removal orders and about 26 000 UBWs were removed annually.

We must be cautious in making any major change to the existing UBWs enforcement policy, lest that it would cause confusion to the public or even convey a wrong message to the community that the Government lacks determination to combat UBWs. The Government has no plan at this stage to introduce any major change to the existing UBWs enforcement policy. The BD will continue to take a multi-pronged approach to tackle the problem of UBWs. Apart from existing measures including prosecution, imposing surcharge on default works, implementing the validation and financial assistance schemes, and providing support through social service teams, BD will explore other effective means to encourage owners to remove their UBWs. The BD will also endeavour to raise its efficiency and reprioritise its work as necessary, such as adjusting the number of target buildings under LSOs, or focusing its resources on conducting LSOs against buildings subject to higher risk caused by UBWs.

Ends/Wednesday, January 24, 2018
Issued at HKT 16:02

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