Following is a question by the Hon Lee Wing-tat and a written reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (February 1):
Question:
It has been reported earlier that the extension works of the Stanley Plaza (the Plaza) managed by The Link Management Limited (The Link) is suspected to involve "construction before approval is granted", and in addition to arousing the concerns of government departments, the case has also given rise to the public queries that after the plans of the alteration works have been vetted and approved by the Buildings Department (BD) under the Buildings Ordinance (Cap. 123), the applicants may, without obtaining prior consent from the Lands Department (LandsD) on the modification of the lease conditions, proceed with the alteration works based on the plans approved by BD. In this connection, will the Government inform this Council:
(a) of the gross floor area and other types of areas of the Plaza (e.g. the total commercial gross floor area and total area of public open space, as well as the internal gross floor area, total lettable area and area of public open space inside the Plaza) respectively before and after the divestment of commercial properties by the Hong Kong Housing Authority; after the completion of the aforesaid extension works, how the commercial gross floor area, total lettable area and total area of public open space of the Plaza differ from the corresponding areas before the extension; how LandsD calculates the land premium of the Plaza after its extension, and of the areas used for the calculations;
(b) whether it knows if in the past five years there were other projects managed by The Link or other private development projects which had commenced after obtaining approval from BD for the alteration plans but before consent was given by LandsD for the modification of the lease conditions (i.e. involving "construction before approval is granted"); if there were, of the details, and whether such projects included the construction project of a betting centre and a support centre in Shatin proposed by the Hong Kong Jockey Club; if the project was included, of the details (including when its alteration plan was approved by BD and when the construction works commenced, as well as the progress of the vetting and approval of its application for lease modification or extension by LandsD at the time when the construction works commenced, etc.); whether the practice of "construction before approval is granted" is a general, usual or acceptable practice;
(c) how LandsD handles projects which involve "construction before approval is granted" (e.g. whether it has any mechanism in place for making a request of reinstatement according to the lease conditions, or whether it usually gives consent to the modification of lease conditions according to the works which have already commenced); whether there is any mechanism of punishment in respect of construction projects which violate the lease conditions; of the cases in which such handling and punishment mechanisms had been applied in the past five years, and the details of such cases; and
(d) how BD and LandsD at present coordinate with each other to facilitate the two departments to note which applications have been submitted to them respectively as well as the approval results in the course of their vetting such applications, and to give timely notifications to the applicants regarding the need to submit applications to the relevant government departments, as well as to ensure that the consent of all relevant departments has been given before granting the Certificate of Compliance (also known as "Letter of Satisfaction") to a project; how BD and LandsD monitor and prevent the aforesaid practice of "construction before approval is granted" or "commencing construction in advance of approval"?
Reply:
President,
The Buildings Ordinance (BO) aims to regulate the planning, design and construction of buildings and associated works on private land, and for this purpose, to prescribe building design and construction standards regarding building structure, fire safety and sanitation. The Buildings Department (BD) shall approve building plans and applications for commencement of works according to the BO. If the applications comply with the relevant requirements under the BO, the BD is obliged to approve the plans and give its consent in writing for the commencement of works. It is not provided amongst these provisions that the lease conditions shall be met. The BO also stipulates that the approval of building plans or consent for commencement of works granted by the BD shall not be deemed to act as a waiver of any term in any land lease.
A land lease is a contract signed by the Government, through the Lands Department (LandsD) in the capacity of a landlord, with a lessee (commonly known as "land owner") for the use of a piece of land. Different land leases are executed at different times having regard to different land conditions. Where the building plans approved by the BD deviate from the lease conditions, the land owner may apply to the LandsD for modification of lease conditions or seek necessary approval. The LandsD will consider the application in the capacity of a landlord and may decide to approve or reject it. In the case of approval, the LandsD may impose conditions such as payment of premium (if applicable).
The Stanley Plaza in Ma Hang Estate, Stanley, was originally owned by the Hong Kong Housing Authority (HA) and thus exempted from the provisions of the BO. In 2005, the HA divested the Stanley Plaza, among certain commercial and car park properties, to the Link Real Estate Investment Trust (The Link). Upon divestment, these properties are subject to the BO, and The Link as the owner of these properties is required to obtain approval and consent from the BD in accordance with the BO before commencing works for the property concerned. According to information from the BD, the building plans of the alterations and additions works for the Stanley Plaza were first approved by the BD in February 2010, and the BD gave written consent in September 2010 to the commencement of the building works.
My reply to the four-part question is as follows:
(a) According to the lease, the gross floor area (GFA) of the commercial facilities in Ma Hang Estate (including the Stanley Plaza) shall not exceed 15 528 square metres.
Under the BO, apart from the total GFA of a building, an applicant is not required to provide such information as the total commercial GFA, total area of common area, total internal lettable area and total area of internal common area of the building, when submitting the building plans for approval. In connection with the alterations and additions works for the Stanley Plaza, the applicant did not provide such information in the building plans. According to the practice note of the BD regarding the inspection and copying of building plans and related documents, and under the obligation to confidentiality, the BD will permit public inspection or issue copies of the building plans or documents submitted to it for the purpose of the BO, after the subject works have been fully completed. As the building works for the Stanley Plaza approved by the BD have not yet fully completed, based on the above principle, the BD is unable at this stage to provide information on the approved GFA of the Stanley Plaza as shown in the relevant building plans.
Following the procedures outlined in part (d) below, the District Lands Office/Hong Kong West and South (the District Lands Office) received the referral from the BD the building plans submitted by The Link for the alterations and additions works of the Stanley Plaza, and liaised with The Link regarding the building plans, asking it to provide further information in accordance with the lease conditions, and convening a meeting whereby The Link was requested to make its representation. As mentioned above, the BD granted approval and written consent for the building works in February and September 2010 respectively; and in its letters to that effect, the BD explained clearly to The Link that the building plans were vetted and approved under the BO, and that the BD's approval did not exempt The Link from the duty of fulfilling the lease conditions.
According to information from the LandsD, the latest situation is that in January this year, the District Lands Office received further information submitted by The Link in response to the District Lands Office's enquiry. The District Lands Office is now considering such information together with information received earlier from The Link. Legal advice is also being sought. Open discussion of the details at this stage would be inappropriate, as it may affect the position and actions to be taken by the District Lands Office in future.
(b) As mentioned above, the statutory vetting and approval mechanism under the BO is independent of the land lease administration mechanism. To implement building plans as approved by the BD which deviate from the lease conditions, a land owner has to apply to the LandsD for modification of lease conditions or seek necessary approval. Regarding the alterations and additions works of the Stanley Plaza, the District Lands Office is now seeking legal advice. Open discussion of the details at this stage would be inappropriate, as it may affect the position and actions to be taken by the District Lands Office in future.
As regards the construction project of a betting centre-cum-support centre in Shatin proposed by the Hong Kong Jockey Club (HKJC) as mentioned in the question, presumably it refers to a new nine-storey building in the Shatin Racecourse. The building plans concerned were approved by the BD in July last year. The District Lands Office/Shatin advised the HKJC in December last year that it had no objection to the building plans (i.e. the building plans already approved by the BD). Before that, the HKJC had informed the District Lands Office/Shatin that works for the building had not yet commenced. In fact, according to BD, the concerned construction works have not yet started.
A land lease is a contract signed by the Government, through the LandsD in the capacity of a landlord, with a land owner for the use of a piece of land. The land owner is obliged to comply with the lease conditions. A land owner who commences "construction before approval is granted" runs the risks associated with the violation of lease conditions. As lease conditions vary with individual cases and the actual circumstances (including the extent of violation of lease conditions) are different, the LandsD will take appropriate lease enforcement actions in the capacity as the landlord when breaches of lease conditions are established. The LandsD does not have statistics on cases of "construction before approval is granted".
(c) As mentioned above, where the building plans approved by the BD deviate from the lease conditions, the land owner may apply to the LandsD for modification of lease conditions or seek necessary approval. The LandsD will consider the application in the capacity of a landlord and may decide to approve or reject it. In the case of approval, the LandsD may impose conditions such as payment of premium (if applicable). As different land leases are executed at different times having regard to different land conditions, and the lease terms vary, it is not possible to generalise the situation. As regards how the LandsD handles cases of "construction before approval is granted", reference can perhaps be made to my written reply to the Hon Paul Tse in the Legislative Council on November 16, 2011, concerning a case involving a shopping centre at Repulse Bay.
(d) We reiterate that the statutory vetting and approval mechanism under the BO is independent of the land lease administration mechanism, and the BD shall vet and approve building plans and applications for commencement of works according to the BO. If the plans and applications comply with the relevant requirements under the BO, the BD is obliged to approve the plans and give its consent in writing for the commencement of works. Under the BD's existing centralised processing system for building plans, upon receipt of building plans submitted by authorised persons for approval, the BD will refer the plans to the relevant government departments (including the LandsD) for advice within their respective purviews related to the BO. The aforesaid arrangement is applicable to the proposed building works of all private buildings (including those owned by The Link). Moreover, the BD will send copies of letters notifying the authorised persons of the vetting results to all the relevant government departments, so that the authorised persons can follow up directly with those departments. The BD will carry out site inspection in the course of plan vetting to monitor if any building works have been commenced before the building plans are approved.
On the other hand, land leases are executed at different times, and the LandsD will consider the building plans and take follow-up actions (if applicable) in the capacity of a landlord according to the relevant lease conditions. For example, the maximum floor area stipulated in some land leases may be lower than that permitted under the BO when the building plans are vetted by the BD. If the land owner would like to achieve the maximum limit permitted under the BO, the land owner should first apply to the LandsD for modification of lease conditions or for approval. When approving the modification or granting the approval, the LandsD may impose conditions as appropriate, including payment of premium (if applicable).
Ends/Wednesday, February 1, 2012
Issued at HKT 15:26
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