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 (December 15):
Question:
Regarding the conversion of private residential units for other uses, will the Government inform this Council:
(a) whether it knows the number of old-type private residential units which have been converted by their owners for uses different from those specified in their occupation permits (OP) (e.g. converting their residential units into small shops), which are in breach of the terms and conditions of OPs and even the land use conditions in government leases;
(b) whether the authorities had received complaints and enquiries about the aforesaid situation in the past five years; if they had, of the respective numbers of such complaints and enquiries received in each year, together with a breakdown by District Council (DC) district;
(c) whether the authorities had uncovered the aforesaid situations during inspections in the past five years; if they had, of the number of such cases uncovered in each year, together with a breakdown by DC district;
(d) how the authorities follow up and handle such cases when they are aware that private residential units have been used for purposes in breach of the prescribed uses in OPs or government leases; and
(e) regarding cases in breach of the prescribed uses in OPs or government leases, whether the authorities had made orders in writing in the past five years according to section 25(2) of the Buildings Ordinance (Cap. 123) to prohibit or discontinue such situations; if they had, of the number of orders in writing made in each year, together with a breakdown by DC district; if not, of the factors considered by the authorities in deciding not to make such orders in writing?
Reply:
President,
Regarding the conversion of private residential units to other uses, in general, there are two types of situation that need to be handled. One is illegal building works (commonly known as unauthorised building works (UBWs)); and the other is change in use of buildings.
According to the requirements of the Buildings Ordinance (Cap 123) (BO), building works carried out in private buildings which do not involve the structure of buildings are exempted works and can be carried out without the prior approval of the Buildings Department (BD). However, such works must comply with the building standards stipulated in the BO. Otherwise, they will be regarded as UBWs. The BD has all along been following the established policy to tackle UBWs and accords priority to those requiring immediate enforcement, covering mainly UBWs which constitute obvious or imminent danger to life and property, are newly constructed, and constitute serious hazards or serious environmental nuisance. For UBWs requiring immediate enforcement, the BD will take follow-up actions according to the BO, including issuing statutory orders to require the owners to rectify the irregularities to ensure public safety.
As regards changes in use of buildings, section 25(1) of the BO requires that prior notice shall be given to the Building Authority (BA) of any intended material change in the use of a building by the person concerned. The BO 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 BA any building is not suitable for its present or intended use by reason of its construction, he may issue an order under section 25(2) of the BO to prohibit or discontinue such use of the building. As in the case of handling UBWs, the BD will accord priority to deal with cases involving changes in use of buildings which constitute obvious or imminent danger to life and property, or those which constitute serious environmental nuisance.
The reply to the five-part question is as follows:
(a) In the past five years (from January 1, 2006 to November 30, 2010), the BD received a total of 360 notices of changes in use of buildings submitted under section 25(1) of the BO. It should be noted that the change of the use of a building to one different from that stipulated in the occupation permit is not necessarily in breach of the regulations and this, as mentioned above, would depend on whether such building is suitable by reason of its construction for its intended use. The Government does not have statistics on the number of private residential units that have been converted by the owners for uses different from those specified in the occupation permits and the number of private residential units throughout the territory currently involved in breaching the user clause of leases.
(b) and (c) In the past five years (from January 1, 2006 to November 30, 2010), the BD received a total of 3,741 complaints about changes in use of buildings. The BD would take follow-up action after receiving a complaint, including deploying staff to conduct inspection to the unit concerned. If breaches of the requirements of the BO are found, the BD will take appropriate follow-up actions in accordance with the Ordinance. The distribution of complaints by year and District Council district is at Annex A. The BD does not have statistical breakdown on the complaints and inquiries specifically about conversion of residential units to other uses and the inspections conducted for such cases.
The number of complaint and enquiry cases concerning private residential units in breach of the user clause of leases received by the Lands Department in the past five years is set out at Annex B by District Council district. As the number of leases is voluminous which cover a vast area of land and many types of use, it is impracticable for the Lands Department to regularly inspect all private land and buildings.
(d) As mentioned above, for UBWs belonging to the category of immediate enforcement, the BD will take follow-up actions in accordance with the BO, including issuing statutory orders to require the owners to rectify the irregularities to ensure public safety. For cases involving changes in use of buildings which constitute obvious or imminent danger to life and property, or those which constitute serious environmental nuisance, the BD will issue orders under section 25(2) of the BO to prohibit or discontinue such new uses in the buildings.
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. Normally it may 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, 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.
(e) In the past five years (from January 1, 2006 to November 30, 2010), the BD issued a total of 14 orders under section 25(2) of the BO to prohibit changes in use of buildings which constituted obvious or imminent danger to life and property or serious environmental nuisance. The cases involved were all related to changes of non-residential uses to other uses. The distribution of such orders is at Annex C.
As regards the complaints at Annex A, in addition to following up the cases according to section 25(2) of the BO, the BD would issue statutory orders for those cases involving UBWs belonging to the category for immediate enforcement action and require the owners to rectify the irregularities in accordance with the existing policy on tackling UBWs.
Ends/Wednesday, December 15, 2010
Issued at HKT 18:24
NNNN