C&WDC, CLSAC Paper No. 10/2013 Annex II

Concern over the preservation of in the Peak area

Consolidated reply from the Commissioner for Heritage’s Office of the Development Bureau and the Antiquities and Monuments Office of the Leisure and Cultural Services Department:

Heritage Conservation Policy Statement

The Government seeks to protect, conserve and revitalise as appropriate historical and heritage sites and buildings through relevant and sustainable approaches for the benefit and enjoyment of present and future generations. In implementing this policy, the Government will give due regard to development needs in the public interest, respect for private property rights, budgetary considerations, cross-sector collaboration and active engagement of stakeholders and the general public.

Policy on the Conservation of Privately-owned Historic Buildings

It is the Government’s policy objective to strike a proper balance between respect for private property rights and heritage conservation.

Statutory Monument Declaration System

According to section 3 of the Antiquities and Monuments Ordinance (the Ordinance) (Cap. 53), the Antiquities Authority (i.e. the Secretary for Development) may, after consultation with the Antiquities Advisory Board (AAB) and with the approval of the Chief Executive, by notice in the Gazette, declare any place, building, site or structure, which the Authority considers to be of public interest by reason of its historical, archaeological or palaeontological significance, to be a monument. Monuments are subject to statutory protection provided under the Ordinance. Pursuant to section 6 of the Ordinance, the protection includes prohibition of any excavation, carrying on building or other works on the proposed monument or monument, and any action to demolish, remove, obstruct, deface or interfere with the proposed monument or monument unless a permit is granted by the Antiquities Authority.

If a place intended to be declared a monument is within private land, the Antiquities Authority shall, in accordance with section 4(2) of the Ordinance, serve on the owner and lawful occupier of the private land a notice in writing of his intention to declare a monument therein. Under section 4(3) of the Ordinance, the owner or lawful occupier concerned may object by petition to the Chief Executive to the intended declaration. The Chief Executive may, in accordance with section 4(4) of the Ordinance, direct that the intended declaration shall not be made, or the objection be referred to the Chief Executive in Council. Pursuant to section 4(5) of the Ordinance, the Chief Executive in Council, upon considering an objection referred to him under section (4)4, may direct that (a) the intended declaration be made by the Antiquities Authority in accordance with section 3 of the Ordinance; (b) the intended declaration be so made, subject to such variations or conditions as he thinks fit; or (c) the intended declaration shall not be made. Under section 4(6) of the Ordinance, a direction of the Chief Executive or of the Chief Executive in Council shall be final.

Section 8 of the Ordinance provides for a mechanism under which the Antiquities Authority may, with the prior approval of the Chief Executive, pay to the owner or lawful occupier of a proposed monument or monument compensation in respect of financial loss suffered or likely to be suffered by him by reason of-

(a) the exercise by the Antiquities Authority, or by a designated person authorised by him, of the powers specified in section 5 (1)1; or (b) a refusal to grant a permit or any conditions imposed in a permit.

1 Section 5 (1) of the Ordinance provides that:

“Subject to this section, the Authority, and any designated person authorised by him in writing, may, for the purposes of this Ordinance, at all reasonable time-

(a) enter and inspect any proposed monument or monument; (b) with the prior approval of the Chief Executive- (i) fence, repair, maintain, preserve or restore any proposed monument or monument; (ii) excavate or search for relics in any proposed monument or monument and remove any relics hitherto undiscovered.” Section 8(2) and 9 of the Ordinance stipulate that the compensation shall be such amount as may be agreed between the Antiquities Authority and the owner or lawful occupier of the proposed monument or monument. In default of any agreement, the owner or lawful occupier may apply to the District Court to assess the amount of compensation payable. The District Court may, on such application, award to the applicant such compensation as it thinks reasonable in the circumstances.

Economic Incentives

The Administration recognises that on the premise of respecting private property rights, we need to offer appropriate economic incentives to encourage private owners either to hand over or conserve historic buildings in their ownership. The policy of providing economic incentives applies to monuments and historic buildings. So far, we have successfully secured the agreement of the owners concerned to conserve their privately-owned historic buildings through the offer of economic incentives in terms of planning and land options (i.e. without using public money) in the following six cases:

(a) (a declared monument) is preserved through a non-in-situ land exchange approved by the Chief Executive in Council; (b) (a Grade 3 Historic Building) is preserved under a preservation-cum-development proposal which was facilitated by the partial uplifting of the Pokfulam Moratorium approved by the Chief Executive in Council; (c) The front portion of the shophouse at 179 Prince Edward Road West (a Grade 3 Historic Building) is preserved through a minor relaxation of plot ratio approved by the Metro Planning Committee of the Town Planning Board (TPB); (d) Four historic buildings of Sheng Kung Hui at 1 Lower Albert Road (three Grade 1 Historic Buildings and one Grade 2 Historic Building) are preserved through a transfer of plot ratio approved by the Chief Executive in Council; (e) The clock tower of the CLP Administration Building (a proposed Grade 1 Historic Building) is preserved through a minor relaxation of building height and plot ratio, as well as permission for using the clock tower preserved as a place of recreation, sports or culture, approved by the Metro Planning Committee of the TPB; and (f) Part of the façade of 47 Barker Road (a Grade 2 Historic Building) is preserved through a minor relaxation of plot ratio approved by the Metro Planning Committee of the TPB.

When applying the policy of providing economic incentives, we will present the proposal to the public and adhere to the required statutory procedures. For example, in the case of King Yin Lei, we presented the land exchange proposal to the public at the first opportunity and followed the established town planning procedures to rezone the newly granted site used for land exchange from Green Belt to residential use. This set of procedures include making public the rezoning application once received by the TPB and allowing the public to express their views within a certain period of time. Those who have made submissions may also make presentation in person at the TPB meetings. In the case of the historic buildings of Hong Kong Sheng Kung Hui at 1 Lower Albert Road, we have also consulted the Central and Western District Council on the preservation-cum-development proposal.

The case of Ho Tung Gardens

In October 2011, the Antiquities Authority, after consulting the AAB, publicly announced and informed the owner of her intention to declare Ho Tung Gardens a statutory monument under the Ordinance. However, the owner objected to the intended declaration and petitioned to the Chief Executive pursuant to section 4(3) of the Ordinance. The Chief Executive in Council, upon considering all relevant materials, directed in accordance with section 4(5) of the Ordinance that the Antiquities Authority shall not declare Ho Tung Gardens a monument. Under section 4(6) of the Ordinance, the direction of the Chief Executive in Council shall be final. Based on the confidentiality principle of the Executive Council, the relevant discussion of the Executive Council cannot be disclosed.

Regarding the economic incentives provided to the owner of Ho Tung Gardens, the then Secretary for Development, in response to media enquiries on the proposed declaration of Ho Tung Gardens as a monument, said on 24 October 2011 that we had offered a land exchange proposal to the owner. The proposed land for exchange comprises three lots, with a total area of about 11 520 square metres. Among them, one lot belongs to the Ho Tung Gardens site where the tennis court and garage are located, while the other two lots located at the two sides of Ho Tung Gardens are government land designated as “Green Belts”. We proposed to apply the original development parameters of Ho Tung Gardens (i.e. basically a plot ratio of 0.5 and a building height of no more than four storeys) to the new site. The then Secretary met with the owner in person on nine occasions to explore conservation options and appropriate economic incentives, including the above-mentioned land exchange proposal and the option of allowing the owner to redevelop areas of relatively less heritage value within the Ho Tung Gardens site (such as the existing garage and tennis court). We believe that these conservation options can strike a pragmatic balance between the conservation of Ho Tung Gardens and respect for private property rights. But regrettably we have not reached an agreement with the owner.

Notwithstanding this, we hope that discussions with the owner of Ho Tung Gardnes will continue. The Secretary for Development has personally written to the owner, expressing our wish to conduct detailed recording of Ho Tung Gardens and our hope that the owner will consider conserving part of Ho Tung Gardens while developing the site. Details of the conservation are to be discussed with the owner.

Review of the Policy on the Conservation of Privately-owned Historic Buildings

In light of the experience gained over the past few years, we need to review the existing policy on the conservation of privately-owned historic buildings to better meet public expectations. The review will include the extent and ways to use public resources to conserve privately-owned historic buildings, setting up a set of more standardised mechanism and criteria for providing economic incentives to owners, as well as and whether we should advance the conservation of privately-owned historic buildings through town planning. We will also examine whether the setting up of a heritage trust will help in the conservation of privately-owned historic buildings and if so, the feasibility of setting up of a trust in the context of Hong Kong.

As regards members’ suggestion of conserving privately-owned historic buildings through land resumption, the Lands Resumption Ordinance (Cap 124) allows the resumption of land for a public purpose. Since the resumption of private land with heritage value will inevitably involve public money, as well as a lot of land and substantial resources, we should carefully consider whether to invoke the Lands Resumption Ordinance in dealing with heritage conservation issues. Further study will be made when we review the policy on the conservation of privately-owned historic buildings.

We hope that a consultation paper will be issued within 2013 after we have studied overseas practices in the conservation of privately-owned historic buildings and exchanged views with stakeholders. We will then brief the District Councils on the consultation paper and seek their views on it.

(Received on 6 February 2013)

C&WDC Secretariat February 2013