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Legal Update

Be prepared for the more stringent requirements in the name of enhancing building safety - A brief introduction of the Buildings Legislation (Amendments) Bill 2011

29 November 2011
Mayer Brown JSM Legal Update

Abstract

On 25 November 2011, the Government gazetted the Buildings Legislation (Amendments) Bill 2011 (the "Bill") which contains the following five new measures with a view to enhancing building safety:

  • Surcharges on defaulted works
  • Penalties against persons who refuse to share the cost of works by an owners' corporation ("OC") for compliance with statutory orders or notices
  • Warrants for entry into the interior of individual premises
  • Signboard control system
  • Registered inspectors to comprehensively report exterior unauthorised building works ("UBWs") under the Mandatory Building Inspection Scheme

This update gives a brief introduction of the above measures.

Surcharge on defaulted works

  • Under the current scheme, if an owner fails to comply with the statutory order/ notice issued by the Buildings Department ("BD"), the BD will deploy its own contractors to undertake the demolition or rectification works on behalf of owners and will then recover costs from owners. If owner fails to settle the bill, BD will register the bill against the title of the property at Land registry which will become an encumbrance on title.

  • Under this new measure, the BD will more readily deploy its contractors to undertake the relevant defaulted works and to complement this enhanced action, the Government proposes to impose a surcharge of not more than 20% of the cost incurred by BD on the works to be recovered from defaulting owners.

Penalty against persons who refuse to share cost of works by owners corporation with statutory orders or notices

  • Under the current Mandatory Building Inspection Scheme and Mandatory Window Inspection Scheme, it is an offence to a fine at Level 4 (i.e. a maximum fine of HK$25,000) if a person, without reasonable excuses, refuses to pay the relevant share of the costs of inspection and repair works for common parts of a building required to be carried out by the OC for compliance with BD's notices.

  • The Government proposes to extend this penalty arrangement to all works required to be carried out by OC under any statutory orders or notices issued under the Buildings Ordinance ("BO").

Warrant for entry into interior of individual premises

  • The Government proposes to allow BA to apply to the Magistrate's Court for warrants to facilitate BA's entry into individual premises for inspection and enforcement actions.

  • Under the Bill, a magistrate may issue a warrant authorising the BA or any authorised officer to enter and break into the premises for exercising his power under the BO if the magistrate is satisfied by information on oath on the following three criteria:

    (i) there are reasonable grounds for suspecting that
    • the building works or the use of the premises contravene BO provisions
    • the premises has been rendered dangerous or is liable to become dangerous
    • the drains or sewers of the premises are in a defective or insanitary condition
    • a notice/ order served under the BO is not complied with

    (ii) the entry was refused, or could not be gained despite a visit made to the premises on at least two different days.

    (iii) a notice of intention to apply for a warrant has been served on the owner.

Signboard control system

  • Under the proposed system, continued use of existing signboards will be subject to safety checks every five years, failing which will be subject to the BD's enforcement action.

Registered inspectors to comprehensively report exterior UBWs under the Mandatory Building Inspection Scheme

  • Under the current Mandatory Building Inspection Scheme, the registered inspectors must notify the BA of any building works in common areas or external walls of a building in contravention of the BO.

  • The Government proposes to expand the scope by requiring the inspectors to also notify the BA of any UBWs carried out to the roofs, podium, yards, lopes or streets contiguous to the building.

Conclusion

Among the five new measures, the most controversial one is the BD's power to apply to the Magistrate's Court for warrants to enter into private premises. According to the Legislative Council Brief published by the Development Bureau, the Government claimed that the major purpose of this measure is to facilitate the BD's inspection of sub-divided units suspected to have unauthorised internal alterations (i.e. commonly known as "劏房" in Chinese) as owners/ occupiers of those sub-divided units always refuse to allow BD officers to carry out inspection.

The Legislative Council Brief also provides that the BD will apply to the Court for warrants only in "emergency situations" and will build in sufficient safeguards to clearly define the circumstances under which the BA or authorised officers could apply to the Court for a warrant.

However, from the three criteria currently proposed under the Bill, there is no specific requirement that a warrant should be issued only in "emergency situations" and it seems that it would not be too difficult for the BD to satisfy those criteria (in particular that the "reasonable ground" criterion can be satisfied even if the a building order served under the BO for some very minor unauthorised works is not complied with).

We consider that at least a sufficient degree of severity and imminence should be incorporated as an additional criterion for the BA to justify why a warrant should be issued by the Court.

The Government will introduce the Bill into the Legislative Council for first reading on 7 December 2011.

For inquiries related to this Legal Update, please contact Alan Yip or your usual contacts with our firm.

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