Illegal structure control needs radical shake-up

Spate of high-profile cases underline persistence of problem despite government’s long-standing efforts, K.M. Mo notes

Those born before the 50s must remember the projecting metal cages that proliferated in resettlement estates and private buildings in the old days. In the 60s and 70s, the government engaged contractors to remove illegal cages from resettlement estates in an extended clearance exercise. The Buildings Ordinance Office then removed metal cages projecting from external facades of private buildings because of safety concerns.

Today we can hardly find illegal metal cages projecting over streets but unauthorized structures and alterations in private buildings remain common problems in Hong Kong. In early 2000, the government set up a task force and worked out an enforcement policy against unauthorized building works (UBW). Under this policy, action was only taken to clear newly erected UBWs and those posing obvious and imminent danger to life or property, serious health hazards or environmental nuisance. Removal action for other UBWs was deferred. The Buildings Department (BD) engaged private consultants to identify and monitor UBWs under construction.

The government revised its enforcement policy against UBWs in April 2011. Currently the BD adopts a wider scope for action on the removal of UBWs — coverage of actionable UBWs is extended to include UBWs on rooftops, podiums, yards and lanes, irrespective of safety risk or whether they are newly built. Under the new enforcement policy, the BD will order removal of newly built UBWs; those posing danger or constituting serious health hazard or environmental nuisance; UBWs on rooftops, podiums, yards, lanes; UBWs projecting from external walls; UBWs in buildings targeted for large-scale operations and unauthorized works in areas approved as environmentally friendly features which have been exempted from gross floor area calculation.

Recent news coverage on illegal structures and unauthorized conversion concerning the secretary for justice, a legislative councilor and a Legislative Council election candidate shows the UBW problem in Hong Kong has not been effectively contained notwithstanding the government’s sustained effort in the past decades. This, together with the number of outstanding removal orders, amounting to more than 43,000 at end of last year, suggests the current UBW control strategy needs to be revisited. We need more imagination in tackling the problem. At present the government will only take action on those types of UBW on the actionable list. The government will not act on UBWs, including those premises with unauthorized material change in use, not falling within the actionable list. Unless the government has a plan to clear all UBWs, including those accorded with “deferred action”, it is worth exploring the option of amnesty for UBWs and unauthorized changes of use that do not pose a hazard or nuisance, with the payment of a forbearing fee.

The concept of amnesty is not a new one — we tolerated squatters in the early 50s. The concept of forbearing fee is also not new as we have tolerance fees for certain breaches of land-lease conditions. To eliminate the claim that owners gain substantial financial benefit from their UBWs, the forbearing fee could be assessed making reference to the market price of the UBWs.

Under this proposal, owners of UBWs and premises with unauthorized structural changes but claiming qualification for amnesty, must engage authorized persons and registered structural engineers to certify their UBWs or premises are structurally safe, and do not cause danger, health hazards or environmental nuisance. Such UBWs and premises should then be registered with the authority before a specified date and their conditions updated by a qualified professional say at five- or sevenyear intervals to ensure their safety. The BD will then concentrate efforts on removing un-registered UBWs.

Such a concept could be applied to UBWs in private buildings in the urban area as well as the New Territories Exempted Houses. It is worth noting this amnesty option may help address the problem of housing shortage by eliminating the need for rehousing of occupants through demolition of those UBWs involving dispossession. It would also minimize waste of housing resources by not having to demolish housing which is safe.

Other than amnesty, we can also use market forces to control UBWs in private buildings. To this end, the government can introduce legislation prohibiting the sale and rental of property unless the owner can produce a certificate from qualified personnel certifying that the property put up for sale or rental had not undergone structural alterations, or contained UBWs. We can specify the types of UBWs that should be covered (or excluded) in the certifier’s certificate, e.g. illegal alterations and additions causing danger and UBWs creating additional floor area. The cost for such a certificate is minuscule compared with the property price and this should not be a financial constraint posing adverse effect on the property market. In addition, this option is cost-effective from a public purse point of view as it does not involve public resources in UBW control.

Industry experts agreed that no single approach can effectively control all UBWs. It will take a combination of different approaches including amnesty, certification on sale and rental of premises together with government’s continuous enforcement action.