Development Control of Development Control of Development Control of Development Control of Buildings in Hong KongBuildings in Hong KongBuildings in Hong KongBuildings in Hong Kong

ecyY 2012 - 2013

BRE 336PolyTechnic University of

Hong Kong

Ch. Ch. Ch. Ch. 4 Building Control4 Building Control4 Building Control4 Building Control

Outline of Chapter Outline of Chapter Outline of Chapter Outline of Chapter 4444– Safety

• Structural & non-structural, fire, etc• Dangerous building, UBW, Minor Works, MBIS/MWIS

– Health• Density and Development Intensity Control

– Comfort• Natural Ventilation and Lighting• Indoor Air Quality• Car parking Space

– Others• Barrier Free Access• Energy Efficiency• Performance Based Approach

Regulations and CoPs

Buildings Ordinance Cap. 123

Building Regulations e.g. Administration,

Planning,Construction

Statutory

Codes of Practicee.g. Means of escape in case

of fire, fire-resisting construction

Design Manualse.g. Barrier Free Access

Practice Notes for Authorized Persons & Registered

Structural Engineers (PNAPs)

Non-statutory (issued by Building Authority)

How to control building works?• Registration and pre-qualified AP/RSE and contractors

(BO, s.3-13)• Prescriptive or performance-based requirements of

– Planning– Design– Construction

• Vetting and approval of building plans (BO, s.14-17)• Consent of commencement of works (BO, s.14-20)• Issuance of occupation permits (BO, s.21)• Monitoring of site works (BO, s.22)• Authority to cease works, demolish or alter works (BO,

s.23-24)

How to control buildings? How to control buildings? How to control buildings? How to control buildings? (cont(cont(cont(cont’’’’d)d)d)d)

• Approval of building works (BO, s.14)• Approval for change of use (BO, s.25)• Powers of exemption (BO, s.41-42)• Authority in controlling dangerous and dilapidated buildings (BO,

s.26-28)• Registration of AP, Contractors, Inspectors, ...• Site Safety Supervision (SSSP)• Regulating Minor Works (B(MW)R)• Mandatory Building Inspections (MBIS/MWIS)

• By other authorities– Licensing of premises– Certification of electricians, …– Periodic inspections of lifts, electricity and fire installations– Water supply– …

4444.1 .1 .1 .1 SafetySafetySafetySafety• Structural & Non-Structural, Fire:

– Design requirements (BCR, CoP (UoS), CoP (UoC), CoP (FS),...); – Materials (BCR, CoP (UoS), CoP (UoC), CoP(FS));– Tests (BCR, CoP(FS));– Inspection and Maintenance.

• Other facilities:– Lifts and Escalators (CoP (L&E));– Others (caisson, cavern, etc).

• Minor Works Regulations & UBWs control• MBIS/MWIS• Dangerous buildings

s.17 s.17 s.17 s.17 Buildings OrdinanceBuildings OrdinanceBuildings OrdinanceBuildings Ordinance• S.17 Conditions may be

imposed

Require and prescribe conditions for-a. Maximum loads and stresses;b. Tests of materialsc. The use of materials;d. Instrumentation for checking design

assumptions and monitoring the effect of the works;

e. Standards of workmanship;f. Qualified supervision;

The structural use of materials

Column BColumn A

Building (Construction) Building (Construction) Building (Construction) Building (Construction) RegulationsRegulationsRegulationsRegulations

– S.4: Appropriate limitations not to be exceeded• The structure shall be capable of safely sustaining and

transmitting to the ground the combined dead loads, imposed loads and wind loads.

• Not to cause any deflection, deformation or other movements, which would impair the stability of, or cause damage to, the whole or any part of that building.

• Not to exceed the appropriate limitations of design stresses

– s.5: Method of design• Shall comply with the laws of mechanics and recognized

engineering principles.

Dangerous BuildingsDangerous BuildingsDangerous BuildingsDangerous Buildings• Section 26 of the Buildings Ordinance provides that

– “Where in the opinion of the Building Authority any building has been rendered dangerous or liable to become dangerous by … dilapidation, … the Building Authority may by order in writing served on the owner declare such building to be dangerous or liable to become dangerous.”

• Until 1992, Section 26A of the Buildings Ordinance was enacted to cover “dilapidated or defective buildings”. The new provision is:– “Where, on inspection, the Building Authority finds any

dilapidation or defect in a building he may by order in writing served on the owner of such building require such works as may be specified in the order to be carried out.”

Existing BuildingsExisting BuildingsExisting BuildingsExisting Buildings• No statutory requirements of

– Maintenance– Prevention– Management– Repair (unless dangerous or dilapidated)

• Just enacted requirements on– Minor Works (B(MW)R)– Building Inspection (MBIS/MWIS)

What are exempted from BO?• s.41 Exemptions

– (1) The following shall be exempt from the provisions of this [Buildings] Ordinance -

• (a) buildings belonging to the Government;• (aa) subject to s.18(2) and (3) of the Housing Ordinance,

buildings upon any land vested in the Housing Authority or over which the HA has control and management;

• (b) ...– (3) [Exempted Works (see next slide)] ...“

• Buildings in the New Territories?– Buildings Ordinance (Application to the New

Territories) Ordinance (Cap. 121).

Exempted Works• ss. 41(3) [before 2008]: "building worksbuilding worksbuilding worksbuilding works

other than drainage works, ground investigation in the scheduled areas or site formation works not involving the structurestructurestructurestructure of any buildingbuildingbuildingbuilding may be carried out inininin any building without application to or approval from the Building Authority: Provided that nothing in this sub-section shall permit any building works to be carried out in contravention of any contravention of any contravention of any contravention of any regulationsregulationsregulationsregulations." [emphasis added]

What are building works?• B.O. s.2, Building Works include:

– Building construction– Site formation works– Ground investigation in the scheduled areas– Foundation works– RepairsRepairsRepairsRepairs– DemolitionDemolitionDemolitionDemolition– Alteration and additionAlteration and additionAlteration and additionAlteration and addition– Building operationBuilding operationBuilding operationBuilding operation– Drainage works

What is involving the structure of any building? (Question)

• A building work involving the structure of a building is:– (A) Works on the structural members themselves?

Such as on columns and beams?– (B) Works affecting the structure adversely?– (C) Works substantially affecting the loading of the

structure?– (D) Works connected to the structural members? E.g.

bolting a sign to the column?

Court Cases on UBWs

• Silver Pioneer International Ltd v Good Onwards Company Ltd (2004) Silver Pioneer International Ltd v Good Onwards Company Ltd (2004) Silver Pioneer International Ltd v Good Onwards Company Ltd (2004) Silver Pioneer International Ltd v Good Onwards Company Ltd (2004) HCMP 4807/2003, HCMP 4807/2003, HCMP 4807/2003, HCMP 4807/2003,

• Dei Chuen Ho Industrial Ltd v Leung Yin Por and AnorDei Chuen Ho Industrial Ltd v Leung Yin Por and AnorDei Chuen Ho Industrial Ltd v Leung Yin Por and AnorDei Chuen Ho Industrial Ltd v Leung Yin Por and Anor [1993] 2 HKC 495/1993, HCMP 303/1993

• HKSAR v. Joy Express LtdHKSAR v. Joy Express LtdHKSAR v. Joy Express LtdHKSAR v. Joy Express Ltd [2003] HKCFI 215; HCMA5/2003, • HKSAR v. Joy Express LtdHKSAR v. Joy Express LtdHKSAR v. Joy Express LtdHKSAR v. Joy Express Ltd (2005) HCMA706/2004, • Wong Sui Fung and Sham Pui Kuen v Yip Siu KeungWong Sui Fung and Sham Pui Kuen v Yip Siu KeungWong Sui Fung and Sham Pui Kuen v Yip Siu KeungWong Sui Fung and Sham Pui Kuen v Yip Siu Keung (2001) LDBM

248/2000 [Greenland Villas case], • Good Think Consultants Ltd v. AG and AnorGood Think Consultants Ltd v. AG and AnorGood Think Consultants Ltd v. AG and AnorGood Think Consultants Ltd v. AG and Anor [1996] 4 HKC 782, 1994

MP 810/1996• R. v. New Best RestaurantR. v. New Best RestaurantR. v. New Best RestaurantR. v. New Best Restaurant (1996) HCMA 448/1996• Mariner International Hotels Ltd. and Sino Land Co. Ltd. v. Atlas Ltd. Mariner International Hotels Ltd. and Sino Land Co. Ltd. v. Atlas Ltd. Mariner International Hotels Ltd. and Sino Land Co. Ltd. v. Atlas Ltd. Mariner International Hotels Ltd. and Sino Land Co. Ltd. v. Atlas Ltd.

and Hang Lung Group Ltd.and Hang Lung Group Ltd.and Hang Lung Group Ltd.and Hang Lung Group Ltd. (2007) FACV 3/2006, • Chong Ping v Hung Ling YuenChong Ping v Hung Ling YuenChong Ping v Hung Ling YuenChong Ping v Hung Ling Yuen [2000] 1 HKLRD A17 • Fairview was Sun Wai Chun v. Fairview Park Property Management Ltd Fairview was Sun Wai Chun v. Fairview Park Property Management Ltd Fairview was Sun Wai Chun v. Fairview Park Property Management Ltd Fairview was Sun Wai Chun v. Fairview Park Property Management Ltd

(2000) FAMV 1/2000(2000) FAMV 1/2000(2000) FAMV 1/2000(2000) FAMV 1/2000

What is NOT an UBW?

• All authorized BW (ABW)?• Exemptions and Exempted works (EW)?• Non-UBWs?• Unascertainable cases?

• Non-UBWs:– Incompliance with BO other than s.14(1)– Minor works since 2008

Victory Mark case • Luk Kwan Hung Nelson v. Victory Mark Investment

Limited case (HCA 8530/1999) • An unrectifiable defect of insufficient storey height

(<2.3m) was found in a newly completed building, • A contravention to s.24(1) of B(P)R.• "...a contravention of the Regulations does not result in

an offence, the works carried out in contravention of the same are not illegal or unauthorized works." (p.14)

• Did the AP know about it?• “Prior to the OP application was fully informed of the

situation”• What did the BA do on it? • "the BA in the BCII meeting decided to tolerate the

deficiency”

Unascertainable Cases• (a) buildings governed under the Buildings (Application

to the New Territories) Ordinance • (b) pre-war buildings (buildings built before 1945) • (c) buildings with their approved plans lost! • (d) unascertainable from the building plans • (e) works approved illegally• (f) illegal building works authorized by the court • (g) illegal building works in the NT tolerated by amnesty

letter. For example BA v. BAT and Siu Kwok Wah case elaborated that all UBWs in the NT built before 27/2/1975 have been tolerated by an amnesty letter issued by the District Office.

• …

Albert House case• Lily Tse Lai Yin & Ano v I.O. of

Albert Hse & Ano (1997) HCPI 828/1997

• A canopy built in 1973 and was collapsed on 1/8/94

• One of the major reasons of the collapse: UBWs (fish tanks) on the canopy

• Who paid the $33M compensation? • Co-owners who do not go bankrupt

Who bears the responsibility?• Tenant or Owner (bona fide)?

– See Kwok Wing House case – See also B(A)O 2008

• Contractor or Employer (bona fide)? – See New Best Restaurant case

• An UBW crosses over 2 buildings?– 大角咀「凱旋門」

• An UBW on government land (i.e. no owner)?– 非法佔用官地

大角咀「凱旋門」

Minor Works• Buildings (Amendment) Ordinance 2008 Gazetted on 27 June

2008;• not yet been implemented, pending subsidiary regulations;

• Class I includes those relatively more complicatedcomplicatedcomplicatedcomplicated minor works minor works minor works minor works, e.g. internal staircases connecting two floors, repair of columns or load bearing walls and removal of large-scale illegal roof-top structures.

• Class II comprises those of a comparatively lower complexitylower complexitylower complexitylower complexity and risk to safety, e.g. repair of non-load bearing external walls, installation or repair of external rendering or external wall tiles and erection of medium-size projecting signboards.

• Class III mainly includes common householdhouseholdhouseholdhousehold minor works minor works minor works minor works, e.g. supporting frames for air-conditioners, drying racks and window canopies."

•

Amended s.41(1) in B(A)O• "Building worksBuilding worksBuilding worksBuilding works (other than drainage works, ground investigation in

the scheduled areas, site formation works or minor worksminor worksminor worksminor works) inininin any building are exempt from s.4, 9, 9AA, 14(1) and 21s.4, 9, 9AA, 14(1) and 21s.4, 9, 9AA, 14(1) and 21s.4, 9, 9AA, 14(1) and 21 if the works do not involve the structureinvolve the structureinvolve the structureinvolve the structure of thethethethe building."

• And s.3B, 3C and 3D are added as follows:• (3B) Designated exempted worksDesignated exempted worksDesignated exempted worksDesignated exempted works that are prescribed in the

regulations are exempt from s.4, 9, 9AA, 14(1) and 21.• (3C) Drainage works (other than minor works) in any building are

exempt from s.4, 9, 14(1) if the works do not involve -....• (3D) Nothing in s(3), (3B) and (3C) permits any building works or

drainage works to be carried out in contravention of any contravention of any contravention of any contravention of any regulationsregulationsregulationsregulations."

s.4 (AP/RSE), s.9 (RC), s.9AA (Prescribed RC) and s.21 (OP).

4-tier Control System• There are now 4 types of authorized building

works:– (1) s.14 major works - approval and consent; – (2) s.38(ka-kf) minor works; – (3) s.41(3B) designated exempted works; and – (4) s.41(3) exempted works.

• S.14 does not apply to minor works!• Then can minor works be approved

retrospectively?

One Building Two Systems• A/C frame A• Erect before 2008• UBW• Must be demolished!

• UBW can be ascertained by checking the approved plan

• A/C frame B• Erect after 2008• Minor Works• Approved

retrospectively?

• UBW cannot be ascertained

• How can one know the date of erectiondate of erectiondate of erectiondate of erection?

4444....2222 Health Health Health Health

• Density, space, NL&V, plumbing & drainage, environment:– Development intensity (ss.19-23 of BPR); – Open space (ss.25, 28 of BPR);– Natural lighting and ventilation (ss.29-37 of BPR);– Plumbing, sanitary fitments, and drainage

(Building (Standards of Sanitary Fitments, Plumbing, Drainage Works

and Latrines) Regulations); and– Congruity (s.16(1)(g) of BO).

History of the current development History of the current development History of the current development History of the current development intensity control systemintensity control systemintensity control systemintensity control system

• 1955: enactment of the Buildings Ordinance, Chapter 123,

• 1956: introduction of the Building (Planning) Regulations, which dealt (among other things) with the control of intensity of development by reference to volume, height, and permissible street widths;

• 1962: introduction of the concepts of site coverage and plot ratio as more sophisticated controls over intensity of development.

Volume control

Plot ratio control1962

What is the current development What is the current development What is the current development What is the current development intensity control by BO?intensity control by BO?intensity control by BO?intensity control by BO?

• S.19-23 Building (Planning) Regulations (BPR);• By Plot Ratio (pr) and Site Coverage (sc)• Schedule 1 of BPR:

– Determine the building height and use first;– Determine the site classification by how many

streets abutting the site; – Determine pr and sc in the Schedule 1; and– Determine any exemptions, concessions, bonuses.

Ht

Domestic buildings Non-domestic buildings

Percentage sitecoverage

Plot ratio Percentage site

coveragePlot ratio

ClassA

siteB C

ClassA

siteB C

ClassA

siteB C

ClassA

siteB C

<= 15 m 66.6 75 80 3.3 3.75 4.0 100 100 100 5 5 5

>15 m <=18 m 60 67 72 3.6 4.0 4.3 97.5 97.5 97.5 5.8 5.8 5.8

>55 m <= 61 m 34 38 41 6.8 7.6 8.0 60 62.5 65 12.2 12.5 13.0

....

Over 61 m 33.33 37.5 40 8.0 9.0 10.0 60 62.5 65 15 15 15

What is Plot Ratio?What is Plot Ratio?What is Plot Ratio?What is Plot Ratio?• Maximum permissible gross floor area = site area

x designated plot ratio;• i.e. gfa = sa x pr;• Example:

– if a site of area 1,000sm;– Abutting 3 streets (wider than 4.5m each) – i.e. a Class C site;– Domestic use;– Building height is chosen to be 62m;– Then max plot ratio given in Schedule 1 is 10.0;– Max site coverage is 40%;

• Max gfa = 1,000 x 10 = 10,000 sm.• 25 storey x 400sm@ = 10,000 sm.• Covered area = 400sm (40% sa).

Each floor area = 400sm

25-storey

Site area = 1,000smpr = 10, sc = 40%

Nothing to do with remaining plot ratio?

What is the current development What is the current development What is the current development What is the current development intensity control by BO? (2)intensity control by BO? (2)intensity control by BO? (2)intensity control by BO? (2)

• S.19-23 Building (Planning) Regulations (BPR);• By Plot Ratio (pr) and Site Coverage (sc)• Schedule 1 of BPR:

– Determine the building height and use first;– Determine the site classification by how many

streets abutting the site; – Determine pr and sc in the Schedule 1; and– Determine any exemptions, concessions, bonuses.

• A Salient Point: any remaining gfa in the specific A Salient Point: any remaining gfa in the specific A Salient Point: any remaining gfa in the specific A Salient Point: any remaining gfa in the specific site?site?site?site?

Remaining GFARemaining GFARemaining GFARemaining GFA

• 3 Big Question Marks:– What is remaining gfa?– Why there are remaining gfa?– Who owns the remaining gfa?

Q1 What is remaining gfa?Q1 What is remaining gfa?Q1 What is remaining gfa?Q1 What is remaining gfa?

1.1.1.1. Under s.21 of Building (Planning) Under s.21 of Building (Planning) Under s.21 of Building (Planning) Under s.21 of Building (Planning) Regulations (and Schedule 1);Regulations (and Schedule 1);Regulations (and Schedule 1);Regulations (and Schedule 1);

2.2.2.2. Development intensity is controlled by Development intensity is controlled by Development intensity is controlled by Development intensity is controlled by plot ratio, among others.plot ratio, among others.plot ratio, among others.plot ratio, among others.

3.3.3.3. When the maximum permitted plot ratio When the maximum permitted plot ratio When the maximum permitted plot ratio When the maximum permitted plot ratio is not fully utilized, the remaining plot is not fully utilized, the remaining plot is not fully utilized, the remaining plot is not fully utilized, the remaining plot ratio multiplies with the site area is the ratio multiplies with the site area is the ratio multiplies with the site area is the ratio multiplies with the site area is the remaining gfa developable in the future.remaining gfa developable in the future.remaining gfa developable in the future.remaining gfa developable in the future.

Q2 Why are there remaining gfa?Q2 Why are there remaining gfa?Q2 Why are there remaining gfa?Q2 Why are there remaining gfa?

1. Demolition of existing buildings;2. Residual (Not used up in the original development);3. Change of use / site classification / change of

control mechanism;4. New exemptions release originally developed-gfa to

become unused-gfa; and5. Others ….

Q3 Who owns the remaining gfa?Q3 Who owns the remaining gfa?Q3 Who owns the remaining gfa?Q3 Who owns the remaining gfa?

1. No-one knows;2. Government response: she does not know what is

remaining gfa.3. Can DMC clearly define? – whether it runs with the

land, see s.41 CPO;4. Can Assignment clearly state? – it affects the

multiple ownership by undivided share approach, and it allows plot ratio transfer;

5. I suggest: all existing owners own it pro-rata to their undivided shares.

I. Remaining gfa due demolition I. Remaining gfa due demolition I. Remaining gfa due demolition I. Remaining gfa due demolition and residualand residualand residualand residual

• Mei Foo Sun Mei Foo Sun Mei Foo Sun Mei Foo Sun Chuen Stage 9?Chuen Stage 9?Chuen Stage 9?Chuen Stage 9?

• Stage 8 MFSC• NKML 25 • Was an oil depot• Redeveloped in

1985• With Conditions of

Exchange in 1971• Premium $21k

Site Area : 183, 480 sf

MFSC: Plot Ratio CalculationsMFSC: Plot Ratio CalculationsMFSC: Plot Ratio CalculationsMFSC: Plot Ratio Calculations

• gfa = site area x plot ratio

• Site area = 183,480 sf

• Included the remaining LPG tank (hidden line)

MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio CalculationsCalculationsCalculationsCalculations

Site Area 183,480sf

Original developed non-domestic GFA 66,957.38 sf

minus GFA of the demolished LPG Plant 6,672.37 sf

Actual non-domestic GFA 60,285.01 sf

Actual plot ratio for non-domestic part 0.3286 = Actual GFA/Site Area

Permitted plot ratio for non-domestic 12.5

Original developed domestic GFA 1,170,197 sf

Original developed plot ratio for domestic part 6.3778

Permitted plot ratio if all domestic 7.6Class B Ht < 61m

Permitted plot ratio for domestic part 7.4002> 6.37779

Remaining plot ratio for domestic part 1.0224

Remaining GFA for domestic developmentRemaining GFA for domestic developmentRemaining GFA for domestic developmentRemaining GFA for domestic development 187,597.71187,597.71187,597.71187,597.71sfsfsfsf

MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio MFSC: Remaining Plot Ratio Calculations (if excl. LPG plant)Calculations (if excl. LPG plant)Calculations (if excl. LPG plant)Calculations (if excl. LPG plant)

Site Area 176,808sfOriginal developed non-domestic GFA 60,285.01 sf

Actual non-domestic GFA 60,285.01 sf

Actual plot ratio for non-domestic part 0.3410 = Actual GFA/Site Area

Permitted plot ratio for non-domestic 12.5Original developed domestic GFA 1,170,197 sfOriginal developed plot ratio for domestic part 6.6185Permitted plot ratio if all domestic 7.6Class B Ht < 61mPermitted plot ratio for domestic part 7.3927> 6.618476Remaining plot ratio for domestic part 0.7742

Remaining GFA for domestic development 136,887.70 sf

DifferenceDifferenceDifferenceDifference 50,710.0150,710.0150,710.0150,710.01sfsfsfsf Rpr=0.287

MFSC: Sub-division of Land LotMFSC: Sub-division of Land LotMFSC: Sub-division of Land LotMFSC: Sub-division of Land Lot

• MFSC Stage 8 on RP of s.A of NKML 25;

• LPG plant on NKML 25 RP;

• A strip as s.A of NKML 25;

• A strip as s.B of NKML 25.

• They are separately They are separately They are separately They are separately owned.owned.owned.owned.

MFSC: the crux of the Remaining prMFSC: the crux of the Remaining prMFSC: the crux of the Remaining prMFSC: the crux of the Remaining pr

• In plot ratio calculations, all the 4 lots are combined as one site area;

• But in DMC and land sales, the 4 lots are separately owned;

• When there are some remaining gfa in the plot ratio calculations, which owner of the 4 lots owns them?

Who owns the strawberry?

Is MFSC the only victim? Riviera Is MFSC the only victim? Riviera Is MFSC the only victim? Riviera Is MFSC the only victim? Riviera Garden caseGarden caseGarden caseGarden case

• "已落成17至19年的荃灣海濱花園，由於地皮的可建樓面未用盡，發展商新世界（0017）最近向屋宇署，申請於商場海濱廣場的位置，於現有建築物之上興建1幢24層高商場連商廈，並會於現有建築物作出改動及加建。

• 根據屋宇署批出圖則，計及現有商場等，新商廈總數面達到24萬方呎。“ 新世界海濱廣場可加建24242424層商場連商廈 (明報) 05月 23日

• BD's record confirms that the application of increasing 25,000 sm gfa by a 24-storey building in Riviera Garden has been approved, although works has not been commenced (for more than 2-year now). i.e. The approval may already lap the 2-year period.

Is MFSC the only victim? TKS caseIs MFSC the only victim? TKS caseIs MFSC the only victim? TKS caseIs MFSC the only victim? TKS case

• 2003年，太古將太古城 屋苑內約5萬方呎休憩用地及高球場（規劃作住宅/商業用途）的地積比率，併入萬邦工廈的重建計劃，令地盤面積增大約1倍，商廈樓面由原先81.7萬呎，可免補地價急增至155萬呎，建成一幢70層高的商業「巨無霸」，也即明年初落成、全港第八高的「港島東中心」，若以現時市值推算，該物業增值達80億至100億元。" 可建樓面增3333萬呎 發展商料多賺7777億 (明報) 11月 16日

• A plot ratio transferred from the remaining plot rato of Taikoo Shing to the Island East.

Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?• MFSC case is in principle a plot ratio transfer case;• There have been some plot ratio transfer case, including:

• Dedication and Surrender (to public use);• Central Reclamation;• Heritage Preservation;• Cinat case;• Others.

• “The existing framework of density control under the Buildings Ordinance and the statutory town plans does not allow any Transfer of Development Rights (TDR) to apply across sites that are not contiguous.

• At present, ‘transfer’ of development rights or permissible gross floor area (GFA) is only allowed between different parts of the same development site. This method should actually be more accurately referred to as clustering of GFA, rather than transfer of GFA.” (John Tsang)

Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?• Dedication and Surrender (to public use)

• So called Bonus GFA;Bonus GFA;Bonus GFA;Bonus GFA;• stipulated in s.22 of the Building

(Planning) Regulation. • If the dedication of set-back area for

public passage or surrender of land for road widening at ground level is consented/acquired by the Government,

• bonus GFA that equals to five times the area surrendered/dedicated or less than 20% of the permissible plot ratio, whichever is the less, may be granted in return for the private area surrendered/dedicated to the public.

• HSBC ground floor concourse.

Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?

• 地產界：兩地價相若

• (星島)2009年8月18日 星期二 05:30• 中環 國金二期對出地皮，將限制可建

四至五層高的商業建築物，而未用盡的地積比則可轉移至金鐘中信大廈以北的用地，有地產業人士指出，此舉既可保障核心區商業樓面的供應量，亦可解決臨海地段物業高度及密度過高的問題。由於金鐘用地鄰近日後添馬艦政府總部，亦近港鐵出口，料兩者地價相若。

• Remaining plot ratio in Central is transferred to Admiralty, to control building height in the Central Promenade.

Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?Can Plot Ratio be Transferred?

• Transfer of Development Rights for the Transfer of Development Rights for the Transfer of Development Rights for the Transfer of Development Rights for the Preservation of Historical Buildings in Preservation of Historical Buildings in Preservation of Historical Buildings in Preservation of Historical Buildings in Hong KongHong KongHong KongHong Kong

• By the Secretary for Planning and Lands, Mr John C Tsang, at the annual general meeting of the Hong Kong Institute of Architects on December 18, 2001

• “Under such a TDR scheme, historical buildings may be declared as monuments, and become eligible ‘sending sites’”.

CINAT caseCINAT caseCINAT caseCINAT case• Cinat Co. Ltd. v AG, Cinat Co. Ltd. v AG, Cinat Co. Ltd. v AG, Cinat Co. Ltd. v AG, PC Appeal No. 31/1994, [1995] 1 HKLR

128, from CACV000131/1993 and HCMP003876/1992 • At no. 121 King's Road, North Point, there is a triangular piece

of land (IL no. 2273 S.A. and R.P.) was reserved by the Government for MTR station.

• The then owner had agreed to dedicate the triangular site for public purpose.

• In return, the triangular site area had been counted in the calculation of bonus site coverage and bonus plot ratio for the development of Carson Mansion in the adjacent site, in accordance with s.23(2)(b) Building (Planning) Regulations.

• Unfortunately, the Deed of Dedication was not signed by the Government when the original public purpose was no longer required.

CINAT caseCINAT caseCINAT caseCINAT case

• Q1: Is there any development potential of the subject site?

• Interestingly, the appellant paid $12m to buy the triangular site and made application for a development of 36-storey commercial buildings. The BA rejected the application by stating that "...the permissible plot ratio and site coverage ... have been almost fully utilised."

CINAT caseCINAT caseCINAT caseCINAT case• Q2: How can one know whether the gfa of a site

has been used up?• A very crucial implication of the Cinat case is that a

professional land administration advisor shall • "enquire from the Buildings Authority whether a

piece of land in question had been used for the purpose of calculating the site coverage and plot ratio" of any other buildings. (Cinat Co. Ltd. v AG, 1993, p.7)

• However, I think very very few practitioners have ever enquired BA on this issue.

• The question is "How can one know whether a piece of land had been used up its permissible plot ratio and site coverage or not?", yet without checking it up may result in professional negligence!

CINAT caseCINAT caseCINAT caseCINAT case

• Q3: no government or professional institutions who are looking into this issue even after the following clear message from the Privy Council has been voiced out.– Per curiam – "It is perhaps unfortunate that there is no public register in

Hong Kong such as would enable potential purchasers of vacant land to ascertain whether or not its development potential has been used up as has happened in the present case." (p.131)

Lot No.Lot No.Lot No.Lot No. Site in gfa calc.Site in gfa calc.Site in gfa calc.Site in gfa calc. Remaining gfa (sm)Remaining gfa (sm)Remaining gfa (sm)Remaining gfa (sm) Owner of the rpr Owner of the rpr Owner of the rpr Owner of the rpr

IL no. 2273 S.A. & R.P. IL no. 2273 S.B. 0 NA

Other TDR casesOther TDR casesOther TDR casesOther TDR cases

• Heritage Preservation:– Tai Fu Tai (大夫第)– Kom Tong Hall (甘棠第)– Ohel Leah Synagogue– Wo Cheong Pawn Shop

• Letter A/B (新界土地權益書甲類│乙類)

• Paliburg Plaza -> Regal Hotel by restrictive covenant

Classification of SiteClassification of SiteClassification of SiteClassification of Site

• Before 2005:– A site abuts only one street is a Class A site;– A corner site (abuts 2 corner streets) is a Class B

site;– A site abuts more than 2 streets is a Class C site.

• After 2005:– Street becomes Specified Street

MFSC: Specified Street?MFSC: Specified Street?MFSC: Specified Street?MFSC: Specified Street?• In a BD reply to the resident, it

clearly states that the EVA to the LCK park is vested in the Leisure and Cultural Services Department, which cannot be regarded as a Specified Street, according to s.18A(3)(a)(i) of BPR

• So, it can at best be a Class A site.

MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?

• The judge said, "although the paved areas within the Site have all the physical characteristics of a street, the question which we must address in determining whether or not those areas should be excluded from the calculations of site area for the purposes of Regulation 23(2)(a) is whether or not they are within the (realistic) 'control' ofwithin the (realistic) 'control' ofwithin the (realistic) 'control' ofwithin the (realistic) 'control' of the Appellant [the developer[the developer[the developer[the developer]."

MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?MFSC: Why the Strip is a Street ?

• "because if the owner is able to exercise control over the area of land in question it would always be open to him to prepare his plan on the basis that the building proposed would in fact be erected on part or all of the said land." (Mayo J in Wedearn case)

• i.e. the street may be extinguished -> it is not a street.

MFSC: How to determine realistic MFSC: How to determine realistic MFSC: How to determine realistic MFSC: How to determine realistic control?control?control?control?

• This case sets out the test for (realistic) 'control' as follows:

• The test of (realistic) 'control' for the purposes of Reg.23(2)(a), is whether there has been dedication of the land to the publicdedication of the land to the publicdedication of the land to the publicdedication of the land to the public or whether third party rights of passage existthird party rights of passage existthird party rights of passage existthird party rights of passage exist over that land must be determinative.

MFSC: How to determine realistic MFSC: How to determine realistic MFSC: How to determine realistic MFSC: How to determine realistic control?control?control?control?

• In this Mei Foo Stage 8 case, since there is neither dedication to the public nor third party rights of passage exist over the land, the court therefore upheld the Building Appeal Tribunal's findings that the subject strip is NOT a 'street'.

• Interestingly, there is second party (housing flats owners) rights of passage exist, not third party rights.

MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?

• The judge upheld the argument that "a a a a 'street' for the purposes of Reg. 2(1) lay 'street' for the purposes of Reg. 2(1) lay 'street' for the purposes of Reg. 2(1) lay 'street' for the purposes of Reg. 2(1) lay outside of a site while a 'street for outside of a site while a 'street for outside of a site while a 'street for outside of a site while a 'street for Reg.23(2)(a) fell within a siteReg.23(2)(a) fell within a siteReg.23(2)(a) fell within a siteReg.23(2)(a) fell within a site."

• i.e. the word 'street' in the same piece of legislation has two different meanings, which are not explicitly stated.

MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?

• Reg.2(1) is a definition section where the word 'street' is defined as footpath and private and public street.

• Where Reg.23(2)(a) takes a street into account in determining the maximum permissible development intensity of a site.

• Reasonable men and women would regard Reg. 2(1) as a glossary for all the terms to be referred in the whole Regulation.

MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?MFSC: What is a Street?

• But now the two appearance of the word 'street' got different meanings and tests.

• "that in determining a street for the purposes of Reg.23(2), 3rd party rights must be determinative;

• However, in determining a street for other purposes under the Regulations, 3rd party rights are not determinative, although they may perhaps be relevant, and the standard method of determination applies; that is, by looking to physical characteristics, use and any other factor that may, in the circumstances of the case, be appropriate."

NL&VNL&VNL&VNL&V• S.25 BPR

– An open space is required in dom bldgs for NL&V– ¼ - ½ roofed over area.

• S.30 BPR– Aggregated superficial area of glass (85% of gross area) = 1/10 room area– Openable area = 1/16 room area

• S.31 BPR– Minimum requirements of window (Prescribed Window)– PNAP 241 max 15-degree (APP 113

http://www.bd.gov.hk/english/documents/pnap/APP/APP113.pdf)• S.32 BPR

– Maximum 9m deep from prescribed window• S.35A BPR

– Air inlet for gas water heater – PNAP 82 (APP 27

http://www.bd.gov.hk/english/documents/pnap/APP/APP027.pdf )

NL&VNL&VNL&VNL&V (Cont'd) (Cont'd) (Cont'd) (Cont'd)• S.36 BPR

– Toilet windows– PNAP 219 (APP 98

http://www.bd.gov.hk/english/documents/pnap/APP/APP098.pdf )• S.37 BPR

– Light and air (of other buildings) NOT to be diminished • S.40 BPR

– NL&V to staircase – PNAP 169 (APP 65

http://www.bd.gov.hk/english/documents/pnap/APP/APP065.pdf ) • PNAP 53 (APP 13

http://www.bd.gov.hk/english/documents/pnap/APP/APP013.pdf )– Submission of Schedule of Building Materials and Products

• CoP (OTTV)• B(EE)R

Larvatto CaseLarvatto CaseLarvatto CaseLarvatto Case• S.30 of BPR: Provision of openable

windows: – 1/16 room area, – max. 9m deep, – prescribed windows.

• The Larvatto case– Curtain wall façade (east facing for

noise reduction): openable 1/100 room area

– Very big room to achieve 1/16 openable window area

– Partitioning may violate the requirements.

Performance Based ApproachPerformance Based ApproachPerformance Based ApproachPerformance Based Approach• PNAP 278 PBA on NL&V• Vertical Daylight Factor (VDF)• Air Change per Hour (ACH)• http://hk.myblog.yahoo.com/ecyyiu/article?mid=2054

1.5 (natural) + 5 (mech)

4%Kitchen

1.5 (natural)8%Habitable room

ACHVDFRm

Indoor Air QualityIndoor Air QualityIndoor Air QualityIndoor Air Quality• No building control on IAQ;• The current IAQ for office is a IAQ Objectives

issued by EPD http://www.iaq.gov.hk/tables.html • Alarming situation of Hong Kong:

http://hk.myblog.yahoo.com/ecyyiu/article?mid=5562

• http://hk.myblog.yahoo.com/ecyyiu/article?mid=4137

• Natural ventilation (openable windows) requirement is the only control.

Items exempted from GFA Items exempted from GFA Items exempted from GFA Items exempted from GFA calculationscalculationscalculationscalculations

• New Policy:– GFA concession cap 10% (PNAP)– Special GFA exemptions by HKBEAM

• Existing Policy:– Exempted GFA (BO s.42(1), eg: gree features, – Disregarded GFA (BPR s.23(3)(b) & 23A(3),

eg: Carparks)– Bonus GFA (BPR s.22 and BA's discretion)– http://blog.yahoo.com/ecyyiuu/articles/84613

Provision of carparking spaceProvision of carparking spaceProvision of carparking spaceProvision of carparking space• LAO 4/2006• http://www.landsd.gov.hk/en/images/doc/2006-4e.pdf?• Res parking space: follow the Planning Standards and

Guidelines• Flexibility to adjust the no. up of down by 10% or 5%+50,

whichever the less.• Else, justified with design details, subject to the approval

of TD, and premium payable.• A carparking provision schedule is required• GFA calculation exempted• Visitors parking spaces: if >75 units, 1-5 space for each

block• Parking space for the Disabled: >=1 for every 200

spaces

OthersOthersOthersOthers• Barrier Free Access

– Disability Discrimination Ordinance, Cap. 487– BPR s.72– Design Guide 2008

• Energy Efficiency of Building– Building (Energy Efficiency) Regulations– CoP (OTTV)– Buildings Energy Efficiency Ordinance, Cap. 610 ( in

operation from 21 Sep 2012)– Building Energy Codes (EMSD)– Energy Audit

Performance Based Building Performance Based Building Performance Based Building Performance Based Building ControlControlControlControl

• Engineering Approach in Fire Safety design is accepted since 1996

• Performance based NL&V design is accepted since PNAP 278

• More and more performance based design would be allowed in the future

• But in A&A works of these PB designed buildings, a re-simulation shall be required to re-assess the impacts of the A&A works, it would be very costly for maintance

• see Yiu, C.Y. (2008) The Emergence of a Performance-Based Building Control System, in Chan,Edwin and Yiu, C.Y. (Eds), Contracting and Regulatory Innovations in Building and Real Estate, PACE Publishing, Hong Kong, pp. 95-104.