The Design, Disposition and Height (DDH) clause: the administration,

the reality

and the future?

3 July 2012

Panelists: Mr. Alnwick Chan

Mr. Vincent Ho

Mr. KL Leung

Mr. Eric Yeung

Moderator: Mr. Chun-kong Lau

Drafting of DDH Clause

• The Usual Drafting

The design, disposition and height* of any building or buildings erected or to be erected on the lot shall be subject to the approval in writing of the Director

• Where there is height restriction under lease, then height will be deleted from the DDH clause.

• Examples:

Lot No. RBL 1165 AIL 458 IL 9027

Location Near 110 Repulse Bay Rd Nam Fung Path Java Rd & Tin Chiu St

User Private Residential Hospital Residential & Commercial

Remarks • Sold by Government

Tender in May 2012

• DDH clause

• Scheduled to be tendered in July 2012

• Height restriction + DD clause

No building works before approval

• Before approval of DDH clause obtained, no building works shall be commenced on the lot

• Building works* does not include– Demolition works

– Site formation works** Defined under the Buildings Ordinance

Some Questions

• What is the processing time for approvals of

development plans under lease?

• What information would be required/ considered

by LandsD for DDH approval?

• Any difficulties/ uncertainties met by practitioners?

• Do HK really need such DDH approval?

5

Plans Processing: what the LandsD

have told the public

Source: Lands Department, HKSAR

GBPs DDH Master Layout Plan

Landscaping Plan

1 LAO PN 1/1994

Processing of General Building

Plans under Lease Conditions

2 LAO PN 1/1999

Design, Disposition and Height

Clause under Lease Conditions

3 LAO PN 5/2002

Processing Time for Master

Layout Plan, General Building

Plan and Landscaping Plan

4 LAO PN 7/2006

Processing of General Building

Plan Submissions

Other Plans under Lease (e.g. Site Formation Plans, Hoarding Plans,

Drainage Plans, Green Area Formation Plans) ?

Processing Time of General Building Plans

as noted in the Performance Pledge

Source: LAO PN No. 5/2002, LAO PN No. 7/2006,

Performance Pledge of Lands Department (2011-12)

& Information from Lands Department

7 weeks

2 weeks

1 week

Issuance of

letter acknowledging receipt

Valid receipt of GBPs submission to LandsD

(no outstanding information required to be submitted

by the AP; what about Insufficient Information/

Additional Information Required then?)

Non-BC III Cases*:

Decision by DLO

BC III Cases:

Decision by DLO

Prior scrutiny of GBPs by LandsD, the following should be obtained:-•Acceptance of Binding Basic Terms Offer (for lease modification cases)• Approval of MLP (for cases with MLP required under lease)

Compliance Rate: 80%

Compliance Rate: 99%

How 1st Set of GBPs and amendment submissions are handled?

• 1st Set of GBPs

– DLOs would apply their best efforts to complete a full check of the 1st set of GBPs within their pledged time limit

• Amendment Plans

– Amendment will be separately handled after the checking of the 1st set of GBPs

– The GBPs under checking will be superseded by the latest set of amendment plans

– Processing time will start to count again each time

Source: LAO PN No. 7/2006

– What is BC III? [Audit Commissioner’s Report in 2005 concerning development of a site at Sai Wan Ho (Note 19)]

• Chaired by the Deputy Director of Lands/ Specialist

• Include members from ArchSD, BD, HyD, TD, PlanD, SES/ Building Plan

• Consider building plans, master layout plans and routine building matters

– Non-BC III Cases include: [LAO PN No. 5/2002]

• Zone 1 straight forward cases*

• normal industrial/godown cases

• normal electricity substation cases

• hoarding plans

• site formation plans

• landscaping plans

• drainage proposals

• NT exempted houses

– BC III Cases(by implication): • the remaining cases

BC III, Non-BC III Cases & BC III Cases

*NT New Town Cases on R(A) sites are seen as Zone 1 development

What need to be scrutinized in the

building plans -

LandsD and BD

commonalities and differences

Fundamental Issues Considered by

LandsD and BD• LandsD

– Development Schedule

(LAO PN No. 1/1994: Processing of General Building Plans under Lease Conditions)

• BD

– Checklist for Checking Fundamental Issues of GBPs

(PNAP No. 272: Re-engineering the Building Approval Process)

– Grounds on which approval or consent may be refused

(s.16 of Buildings Ordinance)

Development Schedule Required under LAO PN No. 1/1994

A. Location & Lot No.:

B. Site Area: m2 (approx)

C. Height of Building

Block No. of Storeys Proposed Height of Building Height Restrictions under Lease Special Condition Referred

SC [ ]

D. Schedule of Accommodation

Accommodation Proposed Required/ Permitted under Lease Special Condition Referred

1 User SC [ ]

2 Gross Floor Area

3 Site Coverage

4 Exterior Elevations

5 Carpark

6 Loading & Unloading Spaces

7 Vehicular Access Points

8 Caretaker’s

• Office Accommodation, Quarters

9 Recreational Facilities

10 Non-building Area

11 Formation Areas (Green, Yellow etc.)

12 Tree Preservation

13 Landscaping

14 Other Special Requirements

E. In Compliance with the Master Layout Plans Approved on _______________________ (if applicable).

F. Date of Last Submission on _________________________ (if applicable).

G. Prescribed Window & Fire Access Requirements – Checked and Complied With

Some Issues Considered by Both

LandsD and BD

• Site Area

• Intended Use of Building

• Gross Floor Area or Plot Ratio

• Site Coverage

• Building Height

• Carpark, Loading and Unloading Spaces

• Vehicular Access Points

• Landscaping

Source: LAO PN No. 1/1994 & BD PNAP No. 272

* LandsD and BD could look at the above from different perspectives.

Some Issues Considered by LandsD Only

Source: LAO PN No. 1/1994

• Exterior Elevations

• Tree Preservation

• Non-building Area under Lease

• Formation Areas (Green, Yellow, etc.) under Lease

• Other Special Requirements under Lease

Aspects Generally Considered by LandsDunder DDH Clause

• LAO PN No. 1/1999

– The aspects are provided on a non-exhaustive basis, i.e. LandsD’s ability to

consider other aspects at her sole discretion is reserved

– Aspects generally considered:-

• Site Coverage

• Headroom/ Ceiling Height

• Building Height

• Stiltings (not encouraged)

• Carparking Provision

• Colour Schemes, Texture and External Finishing (for environmentally/

visually sensitive locations)

• Shape/ Appearance of Buildings (no requirement)

– Owing to the variance of development parameters between individual leases,

each case will be considered on its merit

Source: LAO PN No. 1/1994

Difficulties/ Uncertainties Met by Practitioners

• JPN No. 4: Development Control Parameters

Source: JPN No. 4

Items generally with same practices Items with variations in practices

• Public Transport Terminus

• Government Accommodation

• Covered Public Carpark

• Covered Walkways for Residential

Developments

• Lobbies in Carparking Floors

• Covered Private Carparking

Spaces

• Loading and Unloading Bay

• Residential Recreational Facilities

• Open Flat Roofs

BD PlanD LandsD

Powers &

Rights

Respective ordinances

(e.g. BO, B(P)R, TPO)

Government Lease

Practices on

GFA Calculation

PlanD would follow BD’s practice

(subject to specific provisions in relevant

statutory plans)

consider on its own

merit due to

uniqueness of

individual leases and

properties

Difficulties/ Uncertainties Met by PractitionersExample 1: Headroom

• Headroom/ Ceiling Height

– LAO PN No. 1/1994

• Excessive headroom: rejected or double counted for GFA

– Where can practitioners find the guidance?

Source: LAO PN No. 1/1994

Difficulties/ Uncertainties Met by PractitionersExample 2: Definition of GFA

• GFA Definition Clause under Lease

– “…GFA means the area contained within the external faces of the external walls (or in the absence of such walls the external perimeters) of any building(s) erected or to be erected on the lot measured at each floor level (including any floor below the level of the ground), together with the area of each balcony in such building(s)…”

– The Director at his sole discretion may exclude GFA for:

• Parking, L/UL spaces, machinery or equipment for any lift or any similar service

• Balcony, corridor, lift lobby, communal sky garden, acoustic fin, noise barrier, sunshade, reflector, wing wall, wind catcher or funnel and any other structure/ floor space which excluded by Building Authority from calculation of GFA (subject to payment of premium)

• GFA under B(P)R (23)(3)– GFA shall be the area contained within the external walls of the building measured at

each floor level (including any floor below the level of the ground), together with the area of each balcony in the building…, and the thickness of the external walls of the building.

• How and why open area (like flat roof, terrace, swimming pool) is accountable for GFA?

Difficulties/ Uncertainties Met by PractitionersExample 3: Building Height

• Building Height

– Lease [LAO PN 1/1999]:

• Measured from the lowest formation level up to the top of the highest roof slab

– B(P)R [R 23(1)]:

• Measured from mean level of the lowest street to the mean height of the roof

Do Hong Kong really need

such DDH approval?

Observations on

DD&H Approval

Mr. Alnwick Chan

• Landlord vs Government

• Mess vs Opportunity vs Guidelines

• GFA vs GFA

• Non-Accountable vs Exemption

• Contractual vs Discretionary

• Legal Implication of Court Cases

• Problems Created

• Carparking

Hotel

Office

Residential

Some Observations

on DDH Approval

Mr. K L Leung, FHKIS

Former Convenor of Pre-

construction Task Force

Centralised Processing

• 1 plan, 2 or 3 systems

• BD

– curtailed checking

• LandsD

– detailed checking, more annotations,

sections, dimensions, spot levels, slab

thickness, area calculations (e.g. flat roof

size)

Application of DD&H clause• Original application of DD&H clause

– Zone 2 & 3 sites

• Now

– almost all sites to cover unforeseen matters

Wide and Vague Clause

• Control not purely on design, disposition and height

• LandsD

– very wide discretionary power to reject plans

• high headroom

• roof top structures

• voids (< 700mm)

• storey height

• no. of private swimming pool (1 per block)

• large flat roof (1:1), etc

Transparency and Fairness

• Published Practice Notes provide:

– simple guidelines

– not enough details

• LandsD’s internal guidelines - not available to

private practitioners

• Large developer v Small developer

Different Interpretation of

Development Control Parameters

• Some are aligned but with slight variations

(JPN No. 4)

• Some key parameters are not aligned, e.g.:

– storey height

– building height (stilting, basement, formation

level)

– exempted or non-accountable GFA

Duplication at

LandsD’s Building Plan Unit (BPU)

and DLOs

• DLO

– Plan processing is not its main duty

– Staff resources inadequate

– Need for detailed checking and clarification with BPU

– Long process time

• Centralize all DD&H approval at BPU with

addition of professional staff

Recommendations and Implications

• Lease– Contractual obligations (land premium)

– Simple and clear lease terms v. DDH clause– Role of landlord to facilitate compliance (Issue

guidelines)– Adequate staff resource

– Shorten process time (centralize processing)

• Economic costs to government and purchasers of project delay and uncertainties

• Social costs of delay, e.g. housing production

Key Issues

in Relation to

DD&H Approval

Mr. Eric Yeung

Terms of Government Lease

• No comprehensive definition

• May result in subjective interpretation

Lease Interpretation

• Internal guidelines are not published nor consulted with practitioners

DD&H Clause

• Sometimes used to disapprove plans on grounds which the Government Lease contains no explicit provision

• Unfair to owner who purchased the land at a price based on the Lease Conditions

Conservative Interpretation

• Interpretation sometimes tends to be conservative when approval/ disapproval of plans has premium implications

Same Interpretation by

LandsD and BD?

• Some of the interpretation by LandsD may follows BD’s practice but some may not:-

– GFA and site coverage calculation generally

follow BD

– Storey calculation may not follow BD

Any Appeal System?

• No independent appeal system against plan disapproval

Question

• What is the scope of control that DD clause is intended to cover?