Following is a question by the Hon James To and a reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (May 7):
Question:
Regarding members of the public using facilities such as pedestrian passages, footbridges and open space managed by land owners for public use ("public facilities") on private land, will the Government inform this Council whether:
(a) there are differences on use restrictions between public facilities on private land and those on government land; if there are, of the differences;
(b) members of the public may apply for conducting activities or hanging banners in public facilities on private land; if they may, of the procedure, conditions and restrictions of application; if they may not, the reasons for that; and
(c) any mechanism is in place to handle complaints lodged by members of the public about not being allowed to use public facilities on private land; if so, of the details; if not, whether such a mechanism will be set up?
Reply:
Madam President,
At the LegCo sitting today, a total of three Members have raised questions on the provision of public facilities within private developments. This shows the concern of the community over this issue.
As pointed out in the paper provided by this Bureau to the LegCo Development Panel last month, the provision of public facilities within private development may arise under the land sale conditions or planning conditions, and be subsequently translated into the lease conditions, or in accordance with the Building Ordinance, requiring owners to dedicate certain floor spaces for public use within their private land, which is subsequently subject to Deeds of Dedication. Under these two circumstances, the Government and the owners of the respective properties are parties to a contract, and both parties should abide by the spirit of the contracts and the relevant provisions in the contracts. Generally speaking, owners should design and build the relevant public facilities in accordance with the requirements in the contracts. If these public facilities are not handed over to the Government upon completion, the relevant contractual documents will require owners to bear the management and maintenance responsibilities and open these facilities for public use. Hence, arrangements for public facilities within private developments are not the same in nature as those for public facilities managed by Government departments.
My reply to the three-part question raised by the Hon. James To regarding public facilities managed by private owners on their private land is as follows:
(a) There is obvious difference between these public facilities managed by private owners within their private developments and those facilities on Government land that are managed by Government departments. Using open space as examples, public open space under the Leisure and Cultural Services Department (LCSD) are governed by the Pleasure Grounds Regulations, which are subsidiary legislation under the Public Health and Municipal Services Ordinance (Cap. 132), with each pleasure ground subject to these Regulations, following its gazettal. Users must abide by the Pleasure Grounds Regulations and all instructions from the officers managing such facilities. As for public open space within private developments for public use, the management and use of such facilities would depend on the relevant contractual documents, i.e. land lease conditions or the provisions in the Deeds of Dedication. In general, lease conditions would briefly stipulate that "a grantee shall at his/her own expense provide open space and be responsible for its subsequent maintenance, and allow members of the public to use these facilities freely for lawful purposes, without payment of any nature". If private owners prescribe conditions on the use of such facilities on their own initiatives, those conditions could not be in breach of the contractual provisions.
(b) For public facilities on private land for public use, owners can decide on their own whether or not to permit individual organisation or person to organise activities or display banners. However, this should not be in breach with the contractual provisions in the leases or the Deeds of Dedication. Generally speaking, users are not allowed to organise activities which are unlawful or are in breach of the contractual provisions, in such land or facilities for public use. Also, they should not obstruct others from enjoying the use of such facilities appropriately. Furthermore, unless otherwise specified in the leases or the Deeds of Dedication, these facilities should only be used according to its originally designated uses, such as public passage or open space. Generally speaking, the display or hoisting of publicity material on footbridges is not allowed under the contractual provisions.
(c) The contractual provisions stipulate that the public facilities should be open for public use, but owners can decide on their own whether or not to allow certain activities or behaviours of individual organisations or persons on their private land. What is important is that the decisions of the owners should not be in breach of the contractual conditions. If applicant organisations or persons have doubts on the interpretation of contractual provisions or consider that the owners' decisions of not approving their applications are in breach of the provisions in the leases or Deeds of Dedication, they can approach the Lands Department or the Buildings Department to make enquiries or file complaints.
Ends/Wednesday, May 7, 2008
Issued at HKT 15:20
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