LCQ3: Changes in use of land and buildings

Following is a question by Ir Dr Hon Raymond Ho Chung-tai and a reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (November 3):

Question:

It has recently been reported that the garages of a number of residential buildings were converted into residences or shops by their owners, while some switch rooms of residential buildings were also converted into shops for lease. The affected residents and owners' corporations had repeatedly written to various government departments for assistance during the past 20 odd years, and received a reply from the Buildings Department (BD) in recent months, saying that as the illegal structures did not affect the building structure and obstruct the fire escapes, they were not categorised as unauthorised building works prioritised for removal; hence BD would only issue letters to the owners advising them to demolish the illegal structures themselves. In this connection, will the Government inform this Council:

(a) of the respective roles played by the various relevant government departments in the above matter;

(b) why the Lands Department does not prosecute the aforesaid owners for violation of land use and order the owners to restore the non-compliant properties to their original use; and

(c) why BD does not invoke relevant legislation to immediately order the non-compliant owners to demolish the illegal structures?

Reply:

President,

My replies to the three parts of the question are as follows:

(a) Changes in use of land and buildings are mainly regulated by the Town Planning Ordinance (Cap 131), land leases, Buildings Ordinance (Cap 123) and the deeds of mutual covenant. Relevant departments will deal with cases involving changes in use of land and buildings in accordance with the relevant legislation, policies and land leases.

The Town Planning Ordinance provides a framework for land use planning. Outline Zoning Plans, prepared in accordance with the Ordinance, clearly stipulate the land use zones and planning intentions for different zones in the different districts.

A land lease is executed mainly to regulate the use of a particular piece of leased land. It is a contract signed between the Lands Department, acting in the capacity as landlord on behalf of the Government, and the lessee, commonly known as the "lot owner". Different land leases are entered into at different times having regard to the different situations of the different pieces of land concerned. The conditions of a land lease should be interpreted in accordance with the rules of interpreting contracts. When there is a breach of lease conditions by the lot owner (e.g. the lot owner changes the use of land without the Lands Department's consent), the Lands Department will play the role of lease enforcement.

Regarding the Buildings Ordinance, generally speaking, two types of situations will have to be dealt with where a domestic building's garage is converted into a residence or a shop. One is building works contravening the Buildings Ordinance (illegal building works), commonly known as unauthorised building works (UBWs); the other is change in use of buildings.

Illegal building works generally refer to building works not exempted from approval and carried out without the approval of the Building Authority under the Buildings Ordinance, or building works that are exempted but contravene the requirements and standards of the Buildings Ordinance. Examples of illegal building works include indoor additions or alterations that cause overloading of the floor, alterations or removal of structural parts of building (such as structural walls or beams and columns), and making of openings on fire resistant partition walls to serve as doorways leading to contravention of the requirements of fire escape or fire resistance constructions, etc. The Buildings Department has all along been following the established policies to tackle UBWs and accord priority to those requiring immediate enforcement, covering mainly UBWs which constitute obvious or imminent danger to life or property, are newly constructed and constitute serious hazards or serious environmental nuisance.

As regards changes in use of buildings, under the requirements of the Buildings Ordinance, prior notice should be given to the Building Authority of any intended material change in the use of a building by the person concerned. The Ordinance stipulates that the use of a building shall be deemed to be materially changed if the carrying out of building works for the erection of a building intended for such use would have contravened the provisions of the Ordinance. Where in the opinion of the Building Authority any building is not suitable for its present or intended use by reason of its construction, he may issue orders to prohibit such use. As in the case of handling UBWs, the Buildings Department will accord priority to deal with those cases involving changes in use of buildings which constitute serious danger to life or property, or those which constitute serious environmental nuisance.

If a change in use of building involves fire safety issues or poses fire hazards, the Fire Services Department will also, in accordance with the Fire Services Ordinance (Cap 95) and taking into account the fire hazard present, consider serving a fire hazard abatement notice to request the abatement of the fire hazard.

Moreover, if a change in use of building contravenes the deed of mutual covenant, affected parties can take appropriate actions through the conditions provided in the deed to protect their interests. As regards any suspected acts contravening the provisions of the deed, the owners and the owners' corporation can apply to the Lands Tribunal to resolve the issue through legal proceedings.

(b) As the question does not provide the details of the case, I can only give a general response. In general, upon receipt of an enquiry or a complaint related to a piece of leased land, staff of the Lands Department will conduct site inspections. If a breach of lease conditions is established, the Lands Department will, after seeking legal advice, take appropriate lease enforcement actions at different stages. Taking the example of dealing with a case involving a change in the use of a garage or a switch room as mentioned in the question, the Lands Department will first establish whether there is a breach of the lease conditions (in fact, there are cases that do not involve a breach of lease conditions). If the Lands Department considers that there is a breach of lease conditions, it will normally issue a warning letter to the lot owner concerned requesting rectification of the irregularities. If the lot owner does not rectify the irregularities by the deadline, the Lands Department may register the warning letter at the Land Registry, commonly known as "imposing an encumbrance", to inform the public of the irregularities concerned. It is believed that the public will be prudent in considering whether to purchase or rent any premises on a piece of land where an encumbrance against the land title has been registered. The imposition of an encumbrance will also arouse the concern of the creditor of the lot owner (if applicable). Besides, where a lot owner applies for regularisation of a breach of land lease conditions (usually through a lease modification or a waiver), the Lands Department will process the application in accordance with the applicable procedures. If the application is approved, the lot owner will have to comply with the relevant approval conditions, such as payment of a land premium or waiver fee. However, if the application is rejected, the Lands Department will resume the lease enforcement action.

As stated in the first part of my reply to the question, the Lands Department acts in the capacity as landlord on behalf of the Government to enforce lease conditions. Such lease enforcement actions are different from prosecutions made under certain legislation.

(c) As we do not have the details of the case, we are unable to provide the particulars of the follow-up actions taken by the Buildings Department regarding the case. Generally speaking, the Buildings Department has up to now been following the policies to deal with UBWs established in 2001, and has been focussing on tackling UBWs under specific categories to ensure public safety. The ten-year UBWs demolition programme will be completed in March next year. By then, the Buildings Department will have removed over 400,000 UBWs posing serious hazard to the public or possessing imminent danger.

In order to more effectively enhance building safety in Hong Kong, the Chief Executive announced in this year's Policy Address that the Government had completed a comprehensive review of the measures to enhance building safety. We will implement a package of new measures and adopt a multi-pronged approach covering legislation, enforcement, support to owners and public education to comprehensively enhance building safety. The Development Bureau has already issued a Legislative Council brief on the proposal, and I have also briefed the Panel on Development on the proposal recently. I am pleased that Members are generally supportive of the proposal.

Ends/Wednesday, November 3, 2010
Issued at HKT 14:55

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