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LCQ2: Unauthorised building works

     Following is a question by the Hon Paul Tse Wai-chun and a reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (June 8):


     There have been comments that although the Government had legislation and relevant systems providing clear instructions on the demolition of unauthorised building works (UBWs) in the past, the lax enforcement of the laws over the years had resulted in the proliferation of UBWs, making it difficult to rectify the situation.  In this connection, will the Government inform this Council:

(a) whether it has estimated the time needed by the Buildings Department (BD) to properly handle the problem of UBWs with its existing resources; apart from the cases of UBWs recorded by BD at present, whether it has estimated the current number of suspected unauthorised building structures;

(b) whether it has studied if in the past the procedures and formalities for applying for alterations of building structures even as simple as changes in the positions of drying racks and supporting frames for air-conditioners were very complicated, and the processing time for such applications was too long, causing much nuisance to the public, and as a result members of the public would rather erect UBWs because they were tired of the bureaucratic procedures; if the results of such a study are in the affirmative, and on the basis of the minor works policy reform, of the means to further simplify the application procedures and shorten the processing time for applications and appeals; if not, whether it can conduct the study immediately; and

(c) whether it has considered following the practice of the former Squatter Control Unit (commonly known as "hut division") in dealing with UBWs many years ago by specifying a cut-off date and exempting UBWs already existed before such a date from demolition, but requesting owners of the buildings concerned to engage qualified persons to verify the compliance of such UBWs with safety standards and pay additional premium or government rent to the Government, and new UBWs erected after the specified cut-off date have to be demolished mandatorily; if it has, of the details; if not, whether it can consider as soon as possible; and whether it has any plan to comprehensively tackle or "rationalise" the serious proliferation of UBWs in buildings?



     I would like to thank Hon. Paul Tse Wai-tsun for raising this oral question today.  It allows me to elaborate once more the Government's enforcement policy necessary for ensuring building safety.  The Buildings Department (BD), empowered by the Buildings Ordinance (Cap. 123) (BO), is responsible for controlling building works on private land.  Except for building works exempted by the BO or other legislation, and those designated as minor works under the Minor Works Control System (MWCS) which was implemented on December 31 last year, parties concerned must first obtain the approval of plans and consent to the commencement of works from the Building Authority (BA) before commencing any building works; otherwise those works will become unauthorised building works or unauthorised structures (collectively known as UBWs).  As regards those works that are carried out in private buildings and do not involve the structure of the building, they are exempted works.  However, these works will become UBWs if they contravene any of the building regulations.  On the first point, the main focus on the statute has been clearly on whether such works "do not involve the structure of the building".  As for the second point, the meaning is that even though works that do not involve the structure of a building are exempted works, such works are unauthorised if they cause a building to contravene the building designs stipulated in the regulations (e.g. fire safety specifications, loading, natural lighting and ventilation, etc.).  On the other hand, it is not necessary for the BA to approve the exempted nature of exempted works.

     Building safety is a matter of serious concern to this Council.  Since the building collapse incident in Ma Tau Wai Road in January last year, I have attended 3 motion debates of the Legislative Council (LegCo) and replied to 16 oral and written questions.  These replies of the Government have sufficiently illustrated our focus on building safety and have listed out the achievements of BD's enforcement action over the years.  In accordance with the enforcement policy on demolition of UBWs formulated in 2001, the BD had dealt with the problem of UBWs by prioritising its work and in an orderly manner.  The Department accorded high priority to clearing those UBWs constituting obvious or imminent danger to life or property, newly erected UBWs and UBWs constituting a serious health hazard or a serious environmental nuisance.  

     The hundreds of frontline staff members of the BD had been handling UBWs in accordance with clear enforcement policy and guidelines.  Regarding the more serious cases or cases that had been accorded high priority for clearance, the BD would issue orders under section 24(1) of the BO requiring the owners to remove or rectify the UBWs concerned.  If the owners failed to comply with the orders by the specified dates, the BD would generally instigate prosecution action under section 40(1BA) of the BO in order to urge the owners to remove their UBWs voluntarily, except for those UBWs with obvious danger which would have to be removed by Government contractors.  While this approach had been quite effective in the past, it involved an inevitably long prosecution procedure.

     Regarding the UBWs which had not been accorded high priority for clearance, the BD would, depending on the situation, serve advisory letters or warning notices requesting the owners to remove the UBWs voluntarily.  If an owner failed to remove the UBWs specified in the warning notice by the deadline, the BD would register the warning notice at the Land Registry (commonly known as "imposing an encumbrance").  If only an advisory letter was served, no further follow-up actions would be taken in general.

     Over the past ten years, the BD had conducted sustained enforcement actions against UBWs and had succeeded in removing over 400,000 UBWs.  The large number of iron cages and projections affixing to the exterior of buildings have largely disappeared as well, reducing the threat to pedestrians walking on the streets.  As such, I can hardly agree with the comment in the question that "the lax enforcement of the laws over the years had resulted in the proliferation of UBWs and made it difficult to rectify the situation".

     In view of the completion of this ten-year UBWs demolition programme in March this year, and the fact that the Members and the public are still paying close attention to building safety, in particular the requests expressed by the councillors from districts to the Administration over the years for further clearing those UBWs not constituting imminent danger, the Development Bureau and the BD have conducted a comprehensive review on the strategy to enhance building safety.  We will enhance further the building safety of Hong Kong through the four major aspects of legislation, enforcement, support and assistance to owners as well as public education.  For legislation, apart from the full implementation of the MWCS by the end of 2010, we will work closely with the LegCo on its scrutiny of the bill for the Mandatory Building and Window Inspection Schemes.  As for enforcement, it is considered that the scope of actionable UBWs should be extended and the enforcement actions should be stepped up.  Meanwhile, resources will be consolidated to help owners carry out building repair works and rectify irregularities voluntarily.  Moreover, major publicity and public education campaigns will be launched to encourage public participation in monitoring building safety, thereby promoting a culture for building safety.  Since its announcement by the Chief Executive in his Policy Address last year, this four-pronged approach has received wide support from the LegCo, the District Councils and the society.

     My reply to the three-part question is as follows:

(a) Although the number of existing UBWs in Hong Kong has been significantly reduced by more than 400,000, in view of the extensiveness and complexity of the problem of UBWs, it is not possible to get a quick fix of the problem solely by having the BD, with its limited resources, serve removal orders, instigate prosecutions against owners or remove UBWs on behalf of owners.  Nonetheless, the BD, as a professional team, will endeavour to deal with the problem of UBWs in accordance with the law and the policy; the Bureau will also provide the necessary support.

     To have a more comprehensive understanding of the current number and overall situation of UBWs, the BD has awarded contracts to a number of consultant companies for conducting a stock-taking exercise on those UBWs on the exterior of some  41,000 private buildings in Hong Kong in the coming year.  This will enable the BD to set up a comprehensive database, with records on the types and number of UBWs on the exterior of private buildings, in order to make appropriate arrangements for prioritising its enforcement actions and conducting various large scale operations (LSOs).  The cost for the whole exercise is estimated at around $27 million.

     The above large-scale stock-taking exercise will give us a clearer picture of the number of UBWs to be handled as well as the corresponding enforcement strategy.  However, I would like to appeal to the Members for their understanding that there is a need for us to continuously carry out our work in maintaining building safety.  As such, the Administration has provided the BD with new resources in this financial year, including 177 permanent civil service posts.  This is different from our practice of relying on time-limited non-civil-service-contract staff in the past decade.

(b) The second part of the question has pointed out a situation which required substantial improvement under the earlier versions of the BO that all building works, regardless of their scales and complexity, were governed by the same building control regime.  Before commencing any building works, one must obtain from the BA his approval on the building plans prepared by authorised persons, and his consent to the commencement of works.  This system did not distinguish works for the construction of new buildings from minor building works, which were of a simple nature, carried out in existing buildings.  Thus, quite a number of minor works had been carried out without complying with the law, and hence became UBWs.  Although "erecting UBWs because one was tired of the bureaucratic procedures" , as Hon Tse has mentioned, is not approved or encouraged by the society, the Administration agrees that more convenient arrangements should be made.

     With years of incubation, over 3 years of scrutiny by the LegCo and 12 months of preparation by the BD, the MWCS was fully implemented at the end of last year.  This system has simplified the relevant procedures, providing a lawful, simple, safe and convenient means for owners to carry out a total of 118 minor work items.  When carrying out these minor works, owners will no longer need to hire authorised persons for submitting plans and obtaining the prior approval of plans and consent to the commencement of works from the BD.  Through the simplified requirements, an owner can hire prescribed building professionals and/or registered contractors to carry out minor works.  As it is no longer necessary to wait for the BA's approval under the statutory procedures, the time for carrying out such works can be substantially shortened for up to three months, together with a corresponding reduction in the costs involved.

     Taking into consideration the needs of the public in their daily lives, a Household Minor Works Validation Scheme (Validation Scheme) has also been established under the MWCS, allowing owners to retain and continue to use, after safety inspections and validations, three types of household minor works items, namely air-conditioner supporting frames, drying racks and small canopies, already installed without obtaining the prior approval and consent to the commencement of works from the BA.  Enforcement actions will not be taken by the BD against these validated, yet still unauthorised, minor building works items unless there is a change in the safety conditions.  We are proposing the introduction of a similar validation scheme for existing unauthorised signboards.

     The MWCS, launched for nearly half a year, has been well received by the community.  Until the end of May, 7 800 minor works contractors have been successfully registered.  The BD has also received nearly 7 000 submissions of various types in carrying out minor works.  While we will closely monitor the progress of the implementation of the MWCS, we will also continue to step up the public education and publicity work to encourage owners to adopt the MWCS to carry out minor works.

(c) On the issue of handling the problem of UBWs, the Administration will take a pragmatic stance, handling the issue in accordance to the priorities and by categories.  From according priority to those UBWs constituting obvious or imminent danger to life and property in the past decade, to the extension of the scope of clearance action (to include specified types of existing UBWs without imminent danger) in April this year, our policies have been formulated under the same philosophy.  Any policy adopted by the Administration must observe two very important principles, i.e. building safety must come first and there will be no compromise on the integrity of the BO.

     It is proposed in the third part of the question that UBWs in existence before a specified date be exempted from demolition if the safety standards can be ascertained and the "land premium or government rent" have been paid.  In fact, similar proposal has been put forth in the community recently.  Once again, I would like to reiterate that any building works carried out or any structures completed not in compliance with the BO are unauthorised and will not be possible to become legalised through any administrative measures.  The BA, in accordance with the BO, will only consider issues related to building safety, hence the proposal of exempting UBWs from regulation under the BO upon payment of a land premium is neither feasible nor reasonable.  If owners with financial means can retain their UBWs by a payment, then is it fair to those owners without financial means?  And is it fair to those owners whose UBWs were cleared under the policy or those who had voluntarily removed their UBWs after receiving advisory letters in the past decade?

     In line with our pragmatic stance, we have made legislative amendments to include in the Validation Scheme certain existing minor unauthorised items not posing a serious hazard to building safety, such as air-conditioner supporting frames, drying racks, small canopies and unauthorised signboards (which is being proposed).  Since not every type of unauthorised structures can be validated to ensure their safety solely by post-checking, there would be some difficulties to extend the aforementioned Validation Scheme to cover other existing UBWs of a more complicated nature and a comparatively higher level of risk.

     In fact, even after extending the scope of actionable UBWs, the BD will only be clearing those UBWs on the exterior of buildings.  The Department has also formulated internal guidelines for dealing with these UBWs.  As those UBWs newly treated as actionable will not constitute an imminent danger and will not result in a serious nuisance to the public, we will allow sufficient time to the owner to arrange for the demolition works and BD will provide one-stop assistance to owners through the "building coordinators" upon the reorganisation of the Department, etc.  I trust that adopting this package of measures will fit better with our principle of acting in accordance with the law and fair treatment than any arrangement of "amnesty", "rationalisation" or "exemptions from demolition".  It can also handle the problem of UBWs in Hong Kong in a more effective manner.

     Thank you, President.

Ends/Wednesday, June 8, 2011
Issued at HKT 16:45


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