Following is a question by the Hon Kam Nai-wai and a written reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (January 7):
Question:
Some residents of Taikoo Shing Phase 5 (TKS5) have told me that when they purchased their existing units, there were only open space and non-restaurant shops on the podium of the estate. The lease of the land concerned also contained provisions on “restrictions on such operations as food supply and lodging house” in the estate, but the leaseholder could be exempted from the restriction of the provisions concerned temporarily after obtaining a waiver from the Lands Department. As the developer of the estate has planned to convert the open space and shops on the podium of TKS5 into restaurants, the residents are worried that the developer will further develop the podium into a restaurant zone, so as to attract customers from the nearby One Island East and outside the estate, and thus may have negative impact on the environmental hygiene and the health of the residents of the estate, as well as on the community as a whole. In this connection, will the Government inform this Council:
(a) whether the Government has received complaints from the residents about the restaurants in the estate in the past two years; if so, of the number and contents of the complaints;
(b) of the current land use and restrictions stipulated for the podiums of the estate, and whether restaurants are permitted on the podiums; if so, of the permissible number of restaurants and their total area;
(c) of the progress of the application by the developer for a waiver to temporarily relax the restrictions in the lease of land concerned and the Government’s procedure for handling the application;
(d) given that more than 1000 residents of the estate have signed a petition against the application, whether the Government will reject the application on the basis of the residents’ views;
(e) of the gross floor area of One Island East and its usage distribution, and among them, of the respective areas for which applications for providing restaurants and clubs had been submitted and approved;
(f) of the number of applications received for providing restaurants in One Island East so far and the progress of such applications; and
(g) how the Government will safeguard the interests of the residents of private housing estates in the light of the above case and prevent developers from converting the open space and shops on the podiums of the estates concerned into restaurants after selling the residential units?
Reply:
President,
Some Government leases in the old days contain an offensive trades clause. Under this clause, the lessee shall not, during the continuance of its term, operate certain nuisance-generating or offensive trade or business on such premises. Given changing circumstances and coupled with the gradual establishment of independent licensing mechanisms (such as food and beverage supply) governing various business activities, restrictions on such trade or business through leases have become archaic. Hence, the lessee may apply to the Lands Department (LandsD) for a licence to remove such restrictions, to avoid such obsolete clauses from hampering normal business activities.
My reply to the seven-part question is as follows:
(a) In the past two years, the Government received a total of two complaints about the restaurants in the Taikoo Shing Phase 5 development (the TKS5 development), also known as “On Shing Terrace”. One complaint alleged infestation of cockroaches in a restaurant, while the other complaint concerned two restaurants, where the allegations included the emission of oily fumes, restaurant staff discarding cigarette butts, defecating and urinating in staircases, and the infestation of rodents and mosquitoes in the vicinity due to the improper disposal of refuse by the restaurants in the TKS5 development. Following investigations, none of these problems were spotted. Nevertheless, officers of the Food and Environmental Hygiene Department (FEHD) already reminded the persons in charge of the restaurants concerned to take appropriate action and required the Taikoo Shing (Management) Limited to step up pest control work within the development.
(b) The TKS5 development falls within the “Residential (Group A)” zone on the draft Quarry Bay Outline Zoning Plan (OZP) No. S/H21/25. According to the Notes of the OZP, “Eating Place”is one of the uses which are always permitted on the lowest three floors of a building within the “Residential (Group A)” zone. As such, it is not necessary to apply to the Town Planning Board for planning permission for using the shops on the podium on the second floor of On Shing Terrace as restaurants.
Nevertheless, such uses still have to conform to any other relevant legislation and the conditions of the government lease concerned. The shops in the TKS5 development (the properties) are regulated by the land lease for the Quarry Bay Marine Lot No. 2. The land lease is an old Government lease with no restrictions on uses. Nevertheless, trades such as food supply and tavern operation are restricted by the offensive trades clause contained in the land lease as mentioned above. As a result, if the properties on the lot are to be used as restaurants and hotels etc., the owners concerned are still required to apply to LandsD for a licence to remove such restrictions.
According to the building plans approved by the Buildings Department (BD) under the Buildings Ordinance (the Ordinance), the gross floor area of the non-domestic parts for shops in the TKS5 development is 3,384.88 m2. There is no provision in the Ordinance restricting the total area and the number of restaurants in a building as long as the restaurants are designed and constructed in compliance with the requirements of the Ordinance and its subsidiary legislation, including plot ratio, structural stability, fire escape, fire resisting construction, etc.
FEHD has received two applications for restaurant licences in respect of the TKS5 development and is seeking the views of BD, the Fire Services Department (FSD), the Planning Department (PlanD) and LandsD.
(c) & (d) After receiving the licence application from the property owner (i.e. the Swire Properties Ltd.), LandsD submitted the application together with the views of the residents and other parties to the District Lands Conference (DLC) for consideration on December 12 in accordance with the established processing procedures. The factors considered by the DLC included the following: the restaurant use was always permitted under the OZP and was no longer considered offensive nowadays; the restaurant operators had to comply with the prevailing statutory requirements and obtain and comply with all necessary licences or permissions that might be required; and the owners had to ensure that the restaurant use of the properties complied with the relevant Deed of Mutual Covenant. Having considered the above factors, the DLC approved the licence application in respect of the properties. It is worthy to note that, in processing such applications for licences in respect of the offensive trades clause in old Government leases, having regard to the above-mentioned historical background, LandsD cannot recklessly or unreasonably deny such applications, and shall ensure that each case be considered in a fair and consistent manner.
(e) and (f) As for One Island East, according to the building plans approved by BD under the Buildings Ordinance, its uses include offices and ancillary facilities and the gross floor area of One Island East is 142,791.8 m2. As regards its land leases, these are also old Government leases, and LandsD has already approved similar licence applications in respect of the offensive trades clause. Up to now, FEHD has not received any applications for restaurant licences from One Island East nor issued any restaurant licences in respect of any premises there. The Office of the Licensing Authority under the Home Affairs Department has not received any applications for Certificates of Compliance for club use in One Island East either.
(g) Owners and operators must use their shops within their premises in accordance with the terms and conditions of the Deed of Mutual Covenant. They may use their shops as restaurants in accordance with the land lease conditions including having obtained a licence from LandsD, and the conditions for the restaurant licences as required by FEHD. Regarding the environmental and hygiene concerns as raised by the residents, this will be followed up by the relevant departments including FEHD.
Ends/Wednesday, January 7, 2009
Issued at HKT 14:43
NNNN