LegCo Paper No. CB(1)1947/95-96
(These minutes have been seen by the Administration)
Ref : CB1/PL/PLW/1
LegCo Panel on Planning, Lands and Works
Minutes of Meeting held on
Tuesday, 21 May 1996 at 10:45 a.m.
in Conference Room B of the Legislative Council Building
Members Present :
Hon Edward HO Sing-tin, OBE, JP (Chairman)
Hon Albert CHAN Wai-yip (Deputy Chairman)
Hon LAU Wong-fat, OBE, JP
Hon CHIM Pui-chung
Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
Dr Hon Philip WONG Yu-hong
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon James TO Kun-sun
Hon CHOY Kan-pui, JP
Hon NGAN Kam-chuen
Hon SIN Chung-kai
Hon TSANG Kin-shing
Public Officers Attending :
- For Item III
- Miss Joey LAM
- Principal Assistant Secretary for Planning, Environment and Lands/Environment
- Mr Fred TROMP
- Assistant Director of Environmental Protection
- Mr K S CHAN
- Acting Principal Environmental Protection Officer
Mr T K TSAO
- Assistant Director of Highways
- For Items IV, V and VI
- Mr C F MAK, JP
- Deputy Secretary for Planning, Environment and Lands/Lands & Planning
- For Item IV
- Mrs June LI
- Chief Town Planner/Metro Group
- For Item V
- Dr Y L CHOI
- Director of Buildings
- Mr H W CHEUNG
- Assistant Director/Control & Enforcement
- Mr Peter NGUYEN, QC
- Director of Public Prosecutions
Attorney Generals Chambers
- Mr CHEUNG Wai-sun
- Deputy Principal Crown Counsel
Attorney Generals Chambers
- For Item VI
- Mr D O Kitchell
- Deputy Principal Solicitor
- Mr Herbert LEUNG
- Government Land Agent
- Mr T E Berry, JP
- Principal Solicitor
Legal Advisory and Conveyancing Office
Staff in Attendance :
- Miss Odelia LEUNG
- Mrs Mary TANG
Legal Adviser in Attendance :
- Mr Jonathan DAW
- LA (Item V)
I. Confirmation of minutes of meetings
(LegCo Papers No. CB(1)1348/95-96, CB(1)1293/95-96 and CB(1)1349/95-96)
The minutes of meetings held on 13 February, 6 and 19 March 1996 were confirmed.
II. Discussion items for the next meeting
(Appendix I to LegCo Paper No. CB(1)1401/95-96)
2. Members noted that the next meeting, originally scheduled for 18 June 1996, would be postponed to 25 June 1996. It was agreed that the following items would be discussed :
- Provision of sea water for flushing purposes; and
- Ex gratia compensation for loss of crops.
III. Provision of noise mitigation measures in the design of public roads
(Appendix II to LegCo Paper No. CB(1)1401/95-96)
3. Miss Joey LAM explained the Administrations direction and policy on noise mitigation in designing roads. Miss LAM said that it was established practice since 1986 that all major developments including public roads were required to undergo Environmental Impact Assessment (EIA) process whereby, among other environmental issues, the noise impacts were examined. For planning purposes, the Hong Kong Planning Standards and Guidelines adopted the maximum permissible road traffic noise levels of 65 and 70 dB(A)L10(1h) for schools and domestic premises respectively. In planning new roads, alignments were carefully selected and moved as far away from residential developments as possible. Where such measures alone were not sufficient, practicable direct technical remedies such as noise-reducing-road-surfaces, noise barriers, canopies and covers were provided. In accordance with the EIA, road planners would design the necessary mitigating measures at the planning stage or lay the foundation for such measures to be implemented before completion of the planned sensitive uses. After exhausting all practicable noise mitigation measures on roads, the feasibility of adopting noise mitigating building design would be evaluated during the EIA process and the constraints on planned sensitive uses would be identified.
4. Members were concerned about the ability of the Administration to assess the impact of traffic noise on future residential areas. Instead of tackling the problem at source, the Administration had habitually passed the responsibility for taking remedial noise mitigation measures on to the developers. Developers were subject to serious constraints in building design and layout. As a result, land use could not be optimized, undermining the development potential and the value of the site. The Chairman said that there were many cases where developers were required to comply with special noise mitigation requirements as part of the land sale conditions. These included the erection of excessively high noise barriers, the provision of buffer areas and the restriction in building designs. While this approach might serve the purpose of environmental protection, a more effective way should be to tackle the problem at source. Members opined that it would be more cost-effective if noise mitigation measures could be incorporated at the road planning/construction stage, taking account of future planned uses.
5. In response, Miss Joey LAM explained that the EIA Bill, which was under scrutiny by LegCo, would fomalise the existing administrative EIA arrangements into statutory requirements. The Bill would place the initial onus of providing noise mitigation measures on proponents of infrastructure projects. Requirements and development constraints identified by EIA would be make known to potential developers.
6. Mr T K TSAO explained that three types of direct technical remedies could be applied to new roads, namely noise-reducing-road-surfaces, noise barriers and covers. However, there were technical limitations in the provision of these remedies, which had to be carefully assessed against the geographical conditions and the land use planning of the neighbouring areas. Since 1986, all major developments including public roads were required to undergo EIA process whereby noise impacts were examined. However, the measures adopted would only mitigate noise impact but would create other environmental problems such as visual, air and aesthetic problems. Miss LAM added that EIAs should address the question of noise control in respect of both existing and future planned uses.
7. On a members query about the provision of noise mitigation measures in the present infrastructure projects along the Western Corridor Railway, Mr Fred TROMP said that the principle of controlling noise at source was applied. The Airport Railway was being constructed either underground or with sufficient barriers to take account of noise protection not only for existing buildings but also for other planned uses. The same principle would be applied to the Western Corridor Railway. Particular attention was paid to residential developments exposed to traffic and industrial noise, hence requiring provision of noise mitigation measures at the planning stage. All the Airport Core Programme projects and related projects were subject to EIAs. The Advisory Council on the Environment were also consulted on these projects.
8. As to whether the Administration would permit the provision of noise barriers adjacent to roads at developers expense, as opposed to building high barriers adjoining the development, Mr T K TSAO said that this would have to be considered on a case-by-case basis, having regard to the topography of the site and all other factors affecting the neighbouring areas.
9. The Chairman was concerned about the lack of coordination among different Government departments in the land planning process. Each department focussed on their own concerns and the responsibility for providing noise mitigation measures was left to developers. A member suggested that an inter-departmental working group should be set up to monitor the provision of noise mitigation measures in major infrastructure projects. Consideration should be given to modelling after Japan where noise barriers were installed throughout densely populated areas.
10. Miss LAM acknowledged members concerns and reiterated that the EIA Bill would adequately address them. The Administration would provide members with a paper setting out its plans to deal with noise mitigation in the overall land planning process.
IV. Land use upon relocation of Kai Tak Airport
(Appendix I to LegCo Paper No. CB(1)1401/95-96)
11. The Chairman informed members that the subject was raised at the recent LegCo meeting with Kowloon City District Board members. The DB members were concerned about the future use of the Kai Tak site and requested that more community facilities and parking spaces should be built on the land made available upon relocation of the Airport.
12. Mrs June LI reported on the progress of the feasibility study on the South East Kowloon Development (SEKD) which was commissioned with a view to :
- formulating practical solutions for the phased and integrated development of the area;
- advancing the implementation of certain proposals, including the preparation of sites to meet the urgent need for housing units upon relocation of the airport in mid 1998; and
- devising a plan for the temporary uses of various parts of the airport site, including the runway which was previously excluded.
13. She also advised that Kowloon City District Board members request for more community facilities and parking spaces would be considered in the feasibility study on the SEKD.
14. Mrs June LI further advised on the estimated time-table as follows:
- the general feasibility study for the South East Kowloon Development Study would be completed by the end of 1996;
- the plan for the temporary uses of the airport site would be completed by early 1997; and
- the details of all the engineering projects would be completed by mid 1997.
15. Referring to noise control in land planning, the Chairman reiterated members concern about the lack of coordination on environmental issues in the land planning process, which had constrained the development potential of the land. Members noted that some 146 hectares or 25.4% of the SEKD would be designated for residential developments and enquired whether noise mitigation measures would be adopted in its overall planning to minimise noise pollution to residents. In response, Mr C F MAK advised that for SEKD, the minimisation of traffic noise would be considered in the overall planning and at the construction stage. The combined effort would effectively reduce the impacts of noise to residents. The Administration noted members point to coordinate actions in this respect.
16. On members concern about the need for improvements in traffic flow in East Kowloon, Mrs June LI said that the Central Kowloon Route would significantly improve the traffic flow between East and West Kowloon. For further improvement, a railway to connect Hung Hom with Diamond Hill via South East Kowloon was under consideration. One of the objectives of reviewing the SEKD was to realign trunk roads away from residential developments.
17. As to the timing of the Central Kowloon Route and the railway and their compatibility with other land developments in the area, Mr C F MAK said that the time-frame for completion of the Central Kowloon Route and the railway had yet to be decided. He assured members that the infrastructure developments of the South East Kowloon would be compatible with residential and other developments. Mrs June LI added that adequate bus services would be provided to residents in the transition period, pending the construction of the railway.
18. At members request, the Administration would report to the Panel upon completion of the feasibility study on the SEKD.
V. Report on demolition of Fortuna Hotel
(Appendix IV to LegCo Paper No. CB(1)1401/95-96)
19. Before discussing the item, the Chairman drew members attention to the advice given by the Legal Adviser at the Panel meeting on 19 March 1996 that matters concerning prosecution policies and practices should be under the purview of the LegCo Panel on Administration of Justice and Legal Services.
20. The Chairman declared that he had been asked to act as an independent witness by the architect involved in the case.
21. In response to members enquiries about the advice of the independent witness on the method statement for the demolition of the third floor of the Fortuna Hotel as stated in paragraph 7 of the Administrations paper, Dr Y L CHOI confirmed that there was no ambiguity in the method statement. The statement was in fact specific in stating that all cantilevers, sign-boards, canopies and balconies should be removed prior to the demolition of the main structure. Demolition should be done in the order of slabs, beams and columns. Should this sequence have been followed, the collapse might have been avoided. Dr CHOI said that there was no Chinese version of the method statement made available to the workers on site.
22. Dr CHOI further advised that the following actions were taken by the Buildings Department (BD) in the light of the incident:
- the Buildings (Amendment) (No.3) Bill 1995 was introduced into LegCo to clarify the existing ambiguity in supervision responsibility. The Bill proposed a system to specify the level and type of supervision required for building and demolition works, to set out the management structure of the supervision system and to identify persons responsible for providing supervision at the various levels of the structure; and
- Practice Notes were issued to set out clearer and more specific administrative and technical guidelines on demolition works for authorised persons/registered structural engineers and contractors reference .
23. Members were concerned that the tightening up of supervision procedures might impede the progress of construction works. Dr CHOI explained that the supervision system now proposed in the Bill was the result of full consultation with the building industry and professionals. Regarding the guildlines set out in the Practice Notes, an overall review had been undertaken by the Building Authority. Considerable improvement in processing time was being achieved. He added that a Site Monitoring Section was set up in October 1995 for better safety assurance at all construction and demolition sites. As a result of frequent patrols by staff of the Section, significant improvements had been achieved in the standard of safety at these sites.
24. A member expressed disappointment over the unsuccessful outcome of the proceedings which resulted in the acquittal of all the defendants prosecuted for contravention of the provisions of the Buildings Ordinance (Cap.123). Despite the evidence indicating non-compliance with the proper method and sequence of demolition, no person was convicted. He queried whether there were any flaws in the investigation or prosecution procedures and inadequacies in the existing legislation.
25. Regarding the investigation, Dr CHOI stated that prompt investigation was undertaken by the BD and a report on the incident was completed within two months. The report gave a detailed account of what had happened. Most of the findings of the report were accepted by the independent witnesses. All available information were provided to the Legal Department and other concerned departments.
26. Regarding the prosecution, Mr Peter NGUYEN and Mr CHEUNG Wai-sum made the following points :
- There was insufficient evidence to institute prosecution against the Registered Structural Engineer in question.
- A decision was taken not to prosecute the other defendants because the Prosecuting Counsel found that the opinion of the independent expert witness differed from that of the professional staff of BD in some fundamental aspects. This difference of opinion seriously weakened any case for prosecution.
- The appointment of an independent expert witness to replace the two professional officers of BD was necessary because of a recent ruling by a High Court Judge in February 1996 which effectively precluded a public officer of a prosecuting Government department to serve as its own expert witness.
- There was no question of having taken a wrong charge or having charged against a wrong person.
- Disciplinary proceedings were being contemplated against the responsible parties involved in the incident.
27. A member enquired if the workers on site had been asked to act as witnesses for the prosecution. In reply, Mr H W CHEUNG stated that the workers had been asked to give statements on what had happened at the site on the day of the collapse. Mr CHEUNG Wai-sum added that two of the workers on site had consented to act as witnesses for the prosecution. However, as the trial did not proceed, there was no need for them to give evidence in court.
28. Members noted that BD was reviewing the legal provisions and procedures for approving demolition works and would provide clearer guidelines for defining the different responsibility of the building professionals, in particular the role of registered structural engineers in demolition works.
VI. Sale and Purchase of Properties in the New Territories
(Appendix V to LegCo Paper No. CB(1)1401/95-96)
29. A member was concerned about irregular practices in the sale and purchase of small houses and exempted houses in the New Territories, including the construction of unauthorised building works (UBW) and the sale of uncompleted exempted houses. Although most of the transactions were done through solicitors, there were quite a number of flawed cases. In one case, it was found many years later that Certificates of Exemption had not been obtained in respect of a house intended to be constructed as an exempted building under the Buildings Ordinance (Application to the NT) Cap.121, but a transaction of which had been successfully effected. There were also a number of transactions of exempted houses registered with the Land Registry, which involved unauthorised building structures. The member was concerned about the extent of the problem and urged the Administration to look into the matter with a view to protecting the interests of potential property buyers.
30. Regarding the problem of unauthorised building structures, Mr Canice MAK stated that the Commissioner for Administrative Complaints (COMAC) had recently completed an overall review on the situation and had made a number of recommendations for improvement. The Administration would take these into account in deciding on the course of action to improve the situation. One major constraint was the lack of adequate manpower and resources to conduct more frequent inspections. The Administration was critically examining the recommendations in COMACs Final Report regarding UBW in New Territories exempted houses and would keep the Panel informed in due course.
31. Regarding the sale and purchase of properties in the New Territories, Mr MAK referred members to the paper which set out the policies and procedures for the transaction of small/exempted houses. Mr MAK stated that presale of uncompleted small houses was not allowed. As regards the transaction of small houses not in accordance with the stipulated procedures, the Administration had to look into the matter on a case-by-case basis. The possibility of negligence on the part of the solicitors concerned could not be ruled out.
32. Referring to the case quoted above, Mr Herbert LEUNG explained that the small house concerned was built on a plot of land held under a Block Crown Lease. Certificates of Exemption under Cap. 121 could not be issued retrospectively. The case would be referred to the Buildings Department for enforcement action to be taken under the Buildings Ordinance, Cap. 123.
33. Members were of the view that Governments policy on the construction and sale of small/exempted houses should be tightened up. They were concerned about the Administrations failure to inspect these structures during construction. Quite a number of houses which were not built in conformity with the requirements were tolerated and allowed to be registered with the Land Registry. Members suggested that the Administration should liaise with the Law Society of Hong Kong concerning conveyancing of small/exempted houses. Clearer guidelines in this regard should be provided to potential property buyers. In reply, Mr MAK stated that exemptions under the Buildings Ordinance were granted in the construction of small houses to cater for the practical needs of the rural population. It was normal practice for staff of the Lands Department to carry out inspections of small houses in the New Territories to ensure their compliance with the stipulated requirements.
34. At members request, the Administration would provide a report on the review of unauthorised building structures relating to small/exempted houses in the New Territories. Members also asked for a copy of COMACs Final Report for reference.
35. There being no other business, the meeting closed at 12:45 p.m.
9 August 1996
Last Updated on 21 Aug, 1998