The Design, Disposition and Height (DDH) clause: the administration, the reality and the future?
Panelists:
Mr. Alnwick Chan Mr. Vincent Ho Mr. KL Leung Mr. Eric Yeung
3 July 2012
Moderator:
Mr. Chun-kong Lau
Drafting of DDH Clause • The Usual Drafting The design, disposition and height* of any building or buildings erected or to be erected on the lot shall be subject to the approval in writing of the Director • Where there is height restriction under lease, then height will be deleted from the DDH clause. • Examples: Lot No.
RBL 1165
AIL 458
IL 9027
Location
Near 110 Repulse Bay Rd
Nam Fung Path
Java Rd & Tin Chiu St
User
Private Residential
Hospital
Residential & Commercial
Remarks
• Sold by Government Tender in May 2012 • DDH clause
• Scheduled to be tendered in July 2012 • Height restriction + DD clause
No building works before approval • Before approval of DDH clause obtained, no building works shall be commenced on the lot • Building works* does not include – Demolition works – Site formation works* * Defined under the Buildings Ordinance
Some Questions • What is the processing time for approvals of development plans under lease? • What information would be required/ considered by LandsD for DDH approval? • Any difficulties/ uncertainties met by practitioners? • Do HK really need such DDH approval?
Plans Processing: what the LandsD have told the public GBPs
DDH
Master Layout Plan
Landscaping Plan
1 LAO PN 1/1994 Processing of General Building Plans under Lease Conditions 2 LAO PN 1/1999 Design, Disposition and Height Clause under Lease Conditions 3 LAO PN 5/2002 Processing Time for Master Layout Plan, General Building Plan and Landscaping Plan 4 LAO PN 7/2006 Processing of General Building Plan Submissions
Other Plans under Lease (e.g. Site Formation Plans, Hoarding Plans, Drainage Plans, Green Area Formation Plans) ?
Source: Lands Department, HKSAR
5
Processing Time of General Building Plans as noted in the Performance Pledge
1 week
Valid receipt of GBPs submission to LandsD (no outstanding information required to be submitted by the AP; what about Insufficient Information/ Additional Information Required then?) Issuance of letter acknowledging receipt
7 weeks Non-BC III Cases*: Decision by DLO
Compliance Rate: 80%
BC III Cases: Decision by DLO
Compliance Rate: 99%
2 weeks
Prior scrutiny of GBPs by LandsD, the following should be obtained:•Acceptance of Binding Basic Terms Offer (for lease modification cases) • Approval of MLP (for cases with MLP required under lease) Source: LAO PN No. 5/2002, LAO PN No. 7/2006, Performance Pledge of Lands Department (2011-12) & Information from Lands Department
How 1st Set of GBPs and amendment submissions are handled? • 1st Set of GBPs – DLOs would apply their best efforts to complete a full check of the 1st set of GBPs within their pledged time limit • Amendment Plans – Amendment will be separately handled after the checking of the 1st set of GBPs – The GBPs under checking will be superseded by the latest set of amendment plans – Processing time will start to count again each time
Source: LAO PN No. 7/2006
BC III, Non-BC III Cases & BC III Cases – What is BC III? [Audit Commissioner’s Report in 2005 concerning development of a site at Sai Wan Ho (Note 19)]
• Chaired by the Deputy Director of Lands/ Specialist • Include members from ArchSD, BD, HyD, TD, PlanD, SES/ Building Plan • Consider building plans, master layout plans and routine building matters
– Non-BC III Cases include: • • • • • • • •
[LAO PN No. 5/2002]
Zone 1 straight forward cases* normal industrial/godown cases normal electricity substation cases hoarding plans site formation plans landscaping plans drainage proposals NT exempted houses
– BC III Cases(by implication): • the remaining cases *NT New Town Cases on R(A) sites are seen as Zone 1 development
What need to be scrutinized in the building plans LandsD and BD commonalities and differences
Fundamental Issues Considered by LandsD and BD • LandsD – Development Schedule (LAO PN No. 1/1994: Processing of General Building Plans under Lease Conditions)
• BD – Checklist for Checking Fundamental Issues of GBPs (PNAP No. 272: Re-engineering the Building Approval Process) – Grounds on which approval or consent may be refused (s.16 of Buildings Ordinance)
Development Schedule Required under LAO PN No. 1/1994 A.
Location & Lot No.:
B.
Site Area:
C.
Height of Building
m2 (approx)
Block
No. of Storeys
Proposed Height of Building
Height Restrictions under Lease
Special Condition Referred SC [ ]
D.
Schedule of Accommodation Accommodation 1
User
2
Gross Floor Area
3
Site Coverage
4
Exterior Elevations
5
Carpark
6
Loading & Unloading Spaces
7
Vehicular Access Points
8
Caretaker’s • Office Accommodation, Quarters
9
Recreational Facilities
10
Non-building Area
11
Formation Areas (Green, Yellow etc.)
12
Tree Preservation
13
Landscaping
14
Other Special Requirements
Proposed
Required/ Permitted under Lease
E.
In Compliance with the Master Layout Plans Approved on _______________________ (if applicable).
F.
Date of Last Submission on _________________________ (if applicable).
G.
Prescribed Window & Fire Access Requirements – Checked and Complied With
Special Condition Referred SC [ ]
Some Issues Considered by Both LandsD and BD • • • • • • • •
Site Area Intended Use of Building Gross Floor Area or Plot Ratio Site Coverage Building Height Carpark, Loading and Unloading Spaces Vehicular Access Points Landscaping
* LandsD and BD could look at the above from different perspectives. Source: LAO PN No. 1/1994 & BD PNAP No. 272
Some Issues Considered by LandsD Only • • • • •
Exterior Elevations Tree Preservation Non-building Area under Lease Formation Areas (Green, Yellow, etc.) under Lease Other Special Requirements under Lease
Source: LAO PN No. 1/1994
Aspects Generally Considered by LandsD under DDH Clause •
LAO PN No. 1/1999 – The aspects are provided on a non-exhaustive basis, i.e. LandsD’s ability to consider other aspects at her sole discretion is reserved – Aspects generally considered:• Site Coverage • Headroom/ Ceiling Height • Building Height • Stiltings (not encouraged) • Carparking Provision • Colour Schemes, Texture and External Finishing (for environmentally/ visually sensitive locations) • Shape/ Appearance of Buildings (no requirement) – Owing to the variance of development parameters between individual leases, each case will be considered on its merit Source: LAO PN No. 1/1994
Difficulties/ Uncertainties Met by Practitioners • JPN No. 4: Development Control Parameters BD Powers & Rights
PlanD
Respective ordinances (e.g. BO, B(P)R, TPO)
LandsD Government Lease
Practices on PlanD would follow BD’s practice GFA Calculation (subject to specific provisions in relevant statutory plans)
consider on its own merit due to uniqueness of individual leases and properties
Items generally with same practices
Items with variations in practices
• Public Transport Terminus • Government Accommodation • Covered Public Carpark • Covered Walkways for Residential Developments • Lobbies in Carparking Floors
• Covered Private Carparking Spaces • Loading and Unloading Bay • Residential Recreational Facilities • Open Flat Roofs
Source: JPN No. 4
Difficulties/ Uncertainties Met by Practitioners Example 1: Headroom • Headroom/ Ceiling Height – LAO PN No. 1/1994 • Excessive headroom: rejected or double counted for GFA
– Where can practitioners find the guidance?
Source: LAO PN No. 1/1994
Difficulties/ Uncertainties Met by Practitioners Example 2: Definition of GFA •
GFA Definition Clause under Lease – “…GFA means the area contained within the external faces of the external walls (or in the absence of such walls the external perimeters) of any building(s) erected or to be erected on the lot measured at each floor level (including any floor below the level of the ground), together with the area of each balcony in such building(s)…” – The Director at his sole discretion may exclude GFA for: • Parking, L/UL spaces, machinery or equipment for any lift or any similar service • Balcony, corridor, lift lobby, communal sky garden, acoustic fin, noise barrier, sunshade, reflector, wing wall, wind catcher or funnel and any other structure/ floor space which excluded by Building Authority from calculation of GFA (subject to payment of premium)
•
GFA under B(P)R (23)(3) – GFA shall be the area contained within the external walls of the building measured at each floor level (including any floor below the level of the ground), together with the area of each balcony in the building…, and the thickness of the external walls of the building.
•
How and why open area (like flat roof, terrace, swimming pool) is accountable for GFA?
Difficulties/ Uncertainties Met by Practitioners Example 3: Building Height • Building Height – Lease [LAO PN 1/1999]: • Measured from the lowest formation level up to the top of the highest roof slab – B(P)R [R 23(1)]: • Measured from mean level of the lowest street to the mean height of the roof
Do Hong Kong really need such DDH approval?
Observations on DD&H Approval
Mr. Alnwick Chan
• Landlord vs Government • Mess vs Opportunity vs Guidelines • GFA vs GFA • Non-Accountable vs Exemption • Contractual vs Discretionary • Legal Implication of Court Cases Hotel • Problems Created • Carparking
Office Residential
Some Observations on DDH Approval
Mr. K L Leung, FHKIS Former Convenor of Preconstruction Task Force
Centralised Processing • 1 plan, 2 or 3 systems • BD – curtailed checking • LandsD – detailed checking, more annotations, sections, dimensions, spot levels, slab thickness, area calculations (e.g. flat roof size)
Application of DD&H clause • Original application of DD&H clause – Zone 2 & 3 sites • Now – almost all sites to cover unforeseen matters
Wide and Vague Clause • Control not purely on design, disposition and height • LandsD – very wide discretionary power to reject plans • high headroom • roof top structures • voids (< 700mm) • storey height • no. of private swimming pool (1 per block) • large flat roof (1:1), etc
Transparency and Fairness • Published Practice Notes provide: – simple guidelines – not enough details • LandsD’s internal guidelines - not available to private practitioners • Large developer v Small developer
Different Interpretation of Development Control Parameters • Some are aligned but with slight variations (JPN No. 4) • Some key parameters are not aligned, e.g.: – storey height – building height (stilting, basement, formation level) – exempted or non-accountable GFA
Duplication at LandsD’s Building Plan Unit (BPU) and DLOs • DLO – – – –
Plan processing is not its main duty Staff resources inadequate Need for detailed checking and clarification with BPU Long process time
• Centralize all DD&H approval at BPU with addition of professional staff
Recommendations and Implications • Lease – Contractual obligations (land premium) – Simple and clear lease terms v. DDH clause – Role of landlord to facilitate compliance (Issue guidelines) – Adequate staff resource – Shorten process time (centralize processing)
• Economic costs to government and purchasers of project delay and uncertainties • Social costs of delay, e.g. housing production
Key Issues in Relation to DD&H Approval Mr. Eric Yeung
Terms of Government Lease • No comprehensive definition • May result in subjective interpretation
Lease Interpretation • Internal guidelines are not published nor consulted with practitioners
DD&H Clause • Sometimes used to disapprove plans on grounds which the Government Lease contains no explicit provision • Unfair to owner who purchased the land at a price based on the Lease Conditions
Conservative Interpretation • Interpretation sometimes tends to be conservative when approval/ disapproval of plans has premium implications
Same Interpretation by LandsD and BD? • Some of the interpretation by LandsD may follows BD’s practice but some may not:– GFA and site coverage calculation generally follow BD – Storey calculation may not follow BD
Any Appeal System? • No independent appeal system against plan disapproval
Question • What is the scope of control that DD clause is intended to cover?
