Restrictions on commercial use of public space at malls

PUBLISHED : Saturday, 15 January, 2011, 12:00am
UPDATED : Saturday, 15 January, 2011, 12:00am

Guidelines unveiled yesterday grant developers the right to use 10 per cent of the public open space at their shopping malls, commercial blocks and other developments for commercial use - but only after they have paid a waiver fee.

Legislators are split over the new government guidelines but share the same concern at possible legal loopholes open to abuse by developers.

The commercial use of public open space became mired in controversy in June 2008 when the government began legal action - which is still ongoing - against the operator of Times Square in Causeway Bay, for allegedly profiting by charging exorbitant rents for the use of public space.

In a 32-page document released yesterday, the Development Bureau spells out guidelines for the future design of public open space and the management of existing sites. The new policies will take effect from February 14.

Developers will be required to apply for a waiver and permission from the lands and buildings departments to make commercial use of public space up to a limit of no more than 10 per cent of those public areas.

Commercial uses include open air cafes, kiosks, book and newspaper stands, eating and drinking stalls as well as commercial exhibitions.

Developers will be required to pay a waiver fee to the Lands Department after applications are approved.

'The guidelines provide that, as a rule of thumb, areas permissible for commercial activities should not exceed 10 per cent of the public open space in private developments,' the bureau said.

'This percentage is on the low side compared with international standards so as to reflect the relatively high pedestrian flow in Hong Kong and the supplementary function of such uses in public open space.'

However, the level of the waiver fee and length of time for commercial use would be determined on a case-by-case basis, a bureau spokeswoman said.

For non-commercial or charitable activities, developers are only required to approach the Lands Department for a waiver and then the Buildings Department for permission, not subject to charges.

For future design of public spaces, such as plazas and courtyards, developers are advised to maintain at least 30 per cent green coverage.

Legislative Council development panel member and Civic Party lawmaker Tanya Chan said the guidelines were unclear about the time limit for commercial use of public areas that might be subject to abuses by developers. 'Also, the government has to be cautious in assessing each application to ensure that residents living nearby will not be disturbed,' Chan said.

However, fellow panel member Paul Tse Wai-chun said the government should be more flexible in using public areas regardless of whether they were for commercial or charitable use.

'But the government has to step up law enforcement to ensure the waiver of land use will not be abused,' Tse said.

The operators of Times Square said yesterday they were studying the guidelines without saying whether they would apply for commercial use. Another major developer, Swire Properties, did not comment on the guidelines, only saying it would need more time to study them carefully.

In a High Court writ filed by the government against Times Square more than two years ago, it alleged that for 15 years the company had charged up to HK$124,000 a day for use of space reserved for the public in its ground-floor piazza. The government sought damages from Times Square - a key asset of the Wharf group - for excessive profits from renting out two piazza sites. A date has yet to be fixed for a hearing.