On 29 July 2013, the Building Authority (BA) issued a letter to all authorised persons, registered structural engineers and registered geotechnical engineers informing them that, when submitting new general building plans for any proposed alteration and addition (A&A) works to an existing building on or after 30 July 2013, if the proposed A&A works involve erection of a "new building", then the applicant is required to submit ownership proof of the land forming the site.
Ownership Proof Requirement
In a letter dated 20 October 2010, the BA introduced a new requirement for submission of particulars and documentary proof of ownership or realistic prospect of control of the land forming the site (Ownership Proof Requirement) when submitting new general building plans for any proposed new building for approval under the Buildings Ordinance (BO).
In our legal update " Beware! The Building Authority is Changing the Rule of the Game in General Building Plans Approval Process, but Did Not Conduct Any Consultation in Advance", issued 4 November 2010, we provide detailed analysis of the Ownership Proof Requirement.
Requirement Extended to Include A&A Works to Existing Buildings
The general understanding of the industry is that the Ownership Proof Requirement is applicable when the land owner submits general building plans to the BA for constructing an entirely new building on a piece of land, as opposed to the building works which concern only certain part or parts of an existing building.
However, the BA sent out a letter dated 29 July 2013 informing the industry that the Ownership Proof Requirement also applies to building plans submissions for A&A works to an existing building, if the proposed A&A works will involve the erection of a "new building".
Meaning of "New Building"
As regards the meaning of "new building", the BA will refer to the definition provided in section 2 of the BO. The BA gives the following examples of what is classed as a "new building":
- If an extra story is proposed to be erected on top of an existing five-storey building, such extra story is regarded as a "new building".
- If a horizontal extension outside the dimension of an existing building results in additional floor area, it is also regarded as a "new building".
- Even A&A works within the dimensions of an existing building, including alteration of the external walls, may also result in a "new building".
According to section 2 of the BO, a "new building" is defined as being any building erected and any existing building of which "not less than one half measured by volume is rebuilt" or which is altered to such an extent as to necessitate the reconstruction of "not less than one half of the superficial area of the main walls". The BA should clarify how and to what extent the above examples can be reconciled with the "not less than half" requirement specified in the definition of "new building" given in the BO.
How to Satisfy the Ownership Proof Requirement for A&A Works
The BA gives some guidance on how to satisfy the Ownership Proof Requirement for A&A works submission if the A&A works involve a "new building":
- Incorporated Owners of an existing building will be accepted as having a realistic prospect of control of the land forming the site for the A&A works for the construction of a new building in a "common area" designated under the deed of mutual covenant.
- The BA will exempt the Ownership Proof Requirement if such "new building" is not accountable for gross floor area and site coverage for the purpose of the Building (Planning) Regulations (e.g., new staircase enclosure on an existing roof).
The extension of the scope of application of the Ownership Proof Requirement even for A&A works in certain parts of an existing building has a major impact on individual owners carrying out any A&A works in respect of their own particular unit in a multi-storey building. This is because each and every individual owner only has ownership of his or her own particular unit and does not have ownership or realistic prospect of control of the land forming the site of the remaining part of the building. It would therefore be very difficult, if not impossible, for individual owners to obtain consent from all other owners in the building for the purpose of carrying out the A&A works to his or her particular unit.
Further, the Ownership Proof Requirement implemented by the BA in its letter dated 20 October 2010 has been under various legal challenges. It is expected that the Court of Appeal will hand down its judgment on the legal validity of the Ownership Proof Requirement in the near future. If the Ownership Proof Requirement is quashed by the Court, then the extension of the scope of application on A&A works under the BA's letter dated 29 July 2013 will lose its legal basis and should be withdrawn by the BA.
Visit us at www.mayerbrownjsm.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2013. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.