Time to tear up the rulebook?

Ignorance of the law may be no excuse for those responsible for enforcing it, but the rules that determine whether a structure is illegal have become so complicated that even professionals find it difficult to tell whether alterations are acceptable.

In recent weeks, controversy has intensified this confusion even further, after senior officials, including Chief Executive Leung Chun-ying, were found to have illegal structures at their homes.

The discovery by the media of a trellis at Leung's home on The Peak led to lawmakers questioning his integrity, and to calls for him to resign. Secretary for Food and Health Dr Ko Wing-man has been accused of illegally removing a partition wall to merge two units into one, while Secretary for Education Eddie Ng Hak-kim has been accused of breaking the law after it was found that he had attached a drying rack to the wall of an apartment he had rented out. Neither minister had sought approvals for the works.

The intensifying focus on illegal structures has led to calls for an overhaul of the Buildings Ordinance - which has failed to keep up with the way we live since it was written half a century ago. In interviews with the South China Morning Post, building industry professionals have called for a review of rules and policies that have created traps for unwitting owners, particularly after the government discreetly tightened the enforcement of the rules in recent years.

The Buildings Department did not respond to the Post's request for comment, but some professionals were willing to discuss their doubts and concerns.

'It alarmed us when small alterations or installation of small devices that did not affect a building's safety were challenged by the media and the government,' said Vincent Ho Kui-yip, chairman of the building surveying division of the Hong Kong Institute of Surveyors. 'Has our system gone wrong?'

Ho said the recent media exposes of 'illegal structures' at the homes of Leung, Ng and Ko had gone beyond the spirit of the Buildings Ordinance, which had been intended to ensure only a building's structural safety and hygiene.

The controversy over the politicians' homes has alarmed the public, said Ho, who added that the telephones at his company and at the institute had been ringing constantly over the past few weeks, with calls from flat owners and buyers concerned that their apartments might be illegal. 'People are in panic and are worried, fearing they have offended the law,' Ho said.

It might not have been wrong in itself for Ko to remove a partition wall from his flat, Ho said, as the wall had not been a structure supporting the building. However, a code of practice jointly written by the Buildings Department and the Lands Department, which was devised to facilitate environment-friendly designs, may have created an illegal situation, as a balcony exempted from gross floor area calculation should not exceed five square metres. The merger of the two units, creating two balconies with a total area of 5.4 square metres, may have broken this rule.

Regarding the drying rack installed by Ng, which was immediately removed after it was reported by the media, Ho was unsure whether it was illegal. According to Ho, it would depend on when and how it was installed, and its size. He said the addition of drying racks to apartment buildings had been tolerated by the Buildings Department for the past 10 years even if these had not been shown on building plans, as were small and unenclosed trellises.

The Buildings Department began enforcing the law against illegal structures more strictly five years ago after the Court of Final Appeal (CFA) issued a judgment in February 2007 to settle a long-running dispute between two developers over a hotel in Tsuen Wan. Overturning two lower court judgments, the CFA ruled that a subsidiary of Sino Land should be refunded its HK$321 million deposit after the court agreed that a Hang Lung Group subsidiary had repudiated the sale contract for the 438-room Bay Bridge Hotel at Yau Kam Tau by not providing the HK$1.07 billion hotel in a condition free from 'non-trifling patent defects'.

These defects included concrete plinths on the hotel roof for a gondola and air conditioning plants that had not been shown on the approved building plan and could be seen as unauthorised structures, although they had been in place during the inspection for an occupation permit.

Sino argued that these structures had required the approval of the Buildings Department, and hence it could face a real risk of government action. The CFA judges concurred and ordered the return of the deposit plus interest, and the payment of damages.

'The ruling had far-reaching implications for what may be regarded as exempted works requiring approval, even if they did not affect a building's safety,' Ho said. 'Many small installations, like drying racks and supporting frames for air conditioners, were already there when the government issued the occupation permit. But still, they were not shown on building plans.'

Many illegal structures were tolerated by the government until it began its first large-scale enforcement policy in 2001, to remove those that posed immediate danger in urban areas, including 'flower cages' (a type of extended balcony), large canopies and rooftop houses in single-staircase buildings. The policy was extended to cover structures built on podiums and in the lanes between buildings, although small works and installations were still tolerated.

Ho fears that the recent, frenzied media coverage of the issue could lead to overcontrol and, ultimately, a failure of enforcement.

The existing building rules and policies were already complicated and inconsistent enough, he said, adding that even he could not tell right away which works required government authorisation.

'Frankly, I need to check the guidebook for some items,' he said, referring to a government booklet that lists 118 items of minor works requiring different levels of scrutiny.

Ho has to check the booklet because even if the works are exempt from having to seek approval, under the minor-works control system implemented in December 2010 the owner could have been required to file advance notice with the government or obtain monitoring from registered professionals.

The system, set up partly to stop illegal subdivision of flats, is aimed at allowing the public to carry out minor works in private buildings, through simplified procedures.

The 118 building works are grouped into more than 20 categories and are further arranged in three classes, the first of which - things like strengthening supporting structures for air conditioners and the erection of metal gates and canopies more than 500mm from a wall - is the most strictly enforced, as it requires informing the department in advance, implementation by registered contractors and monitoring by registered architects, surveyors or engineers.

The second class - things such as repair of drains above ground and repair of windows - also requires advance notice but does not need monitoring by professionals.

The third class - items such as erection of drying racks and protective barriers that do not add to the load on a cantilevered slab - requires notice only after the work has been carried out by registered contractors.

However, some types of work, like the erection of canopies and supporting frames for air-conditioners, could fall into more than one class, depending on the scale of the work that has to be carried out.

There is also a validation scheme under the system which allows some structures that were built before the system was in place, including lightweight canopies, drying racks and supporting frames for air conditioners. These structures must, however, be certified as safe by professionals and the Buildings Department should be informed.

'If one fails to fulfil any of these tasks, he or she could have broken the law,' Ho said, adding that unauthorised works could be used by buyers as a reason for giving up a transaction, as in the case of Sino Land.

But the reality is that owners are prone to fall into a trap, as some items of similar nature are not covered by the minor works system, meaning they must submit a revised building plan to obtain approval, a process that could cost HK$100,000.

For example, while a lightweight canopy used for shading sunlight does not require approval, other sun-shading devices do. Both protective barriers and covered walkways used to protect residents from falling objects require approval regardless of their scale. Other items excluded from the system include trellises and retractable canopies.

Ho said the Buildings Ordinance, which was passed in 1955 and has since undergone hundreds of technical amendments, should be reviewed soon, as it failed to address the public's needs.

Property prices and the aspirations of homeowners has increased demand for smaller flats, but creating more space within existing buildings may be impossible. The removal of the kitchen's wall, for example, will contravene fire safety rules.

Ho said a revamp of the rules, to allow amended standards for old buildings, for example, would help revitalise and lengthen the life of existing buildings.

Anna Kwong Sum-yee, a former senior official in the Buildings Department and immediate past president of the Hong Kong Institute of Architects, has reservations about relaxing the law, whether by extending the definition of minor works or reinterpreting the definition of exempted works. 'In some cases, the seemingly small concrete works could add to the building's loading or result in water seepage,' Kwong said.

She called for better public education and a more comprehensive approach to tackle unauthorised structures instead of just acting on complaints. 'Inspections can be conducted on a street-based scale, where violation of the law is serious,' she said, adding that few people were aware of the free consultation service on illegal structures provided by the Home Affairs Department.

Bernard Lim Wan-fung, president of the Hong Kong Institute of Urban Design, said confusion stemmed from a lack of public education, and lax enforcement over the years. 'Not only the public, but ministers who did not know whether their homes had illegal structures have had to make apologies,' Lim said.

He added that, to make life easier for flat owners, the department might consider replacing the approval process with random checks in less sensitive cases.

$200,000

Maximum fine, in HK dollars, for illegal structures, which can also result in prison for up to one year, with further fines of HK$20,000