CSE566 Statutory Framework for Construction Practice Ir Dr Eddie Lam

Topic 3: Administration of Buildings Work

References

1. Butterworths Hong Kong Building Law Handbook.

2. Sihombing and Wilkinson, Students’ Guide to Hong Kong Conveyancing.

1.0 PNAP in force and authority

1. The PNAP in force are listed in the Appendix A of ADM-1 and there are over 300
Practice Notes in force.

2. Effect of the PNAP, see Yeung Pui Yee v BA [1989] 1 HKC 356. PNAP 125 (APP-47)
“has the effect of reminding APs …” and provides “guidelines to APs”.

2.0 Consequence of non-compliance

3. In general, it is not an offence unless implied in the Ordinances.

4. Non-compliance may only affect the approval and consent.

5. For instance APP-16 on “Claddings” has provided tests to confirm the performance of
the claddings. Paragraph 15 indicates that “no consent for the commencement of the
stone cladding works will be given until the test reports specified in paragraphs …
have been submitted and found to be satisfactory by the Building Authority”.

6. Some of the PNAP are only served as guidelines for AP and RSE, see APP-47.

7. There are PNAP for information. For instance,

 APP-39 on “Viewing and Copying of Plans and Documents”

 ADV-2 “Legislation and Publications Affecting the Building Industry”
 APP-60 “BO, Cap 123 Specified Forms”

3.0 Procedures for Approval and Consent

8. Re Profit Success Development Limited (CACV 87/2014) refers.

a. On 21 August 2009, the BA issued a s24(1) building order against the

applicant to demolish (i) a structure and (ii) a metal platform that were
erected without having first obtained approval and consent required by
s14 of BO.

b. On 3 August 2011, the Tribunal dismissed the applicant’s appeal from

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the building order. On 8 November 2012, Au J granted the applicant’s

application for judicial review against the Tribunal’s decision.
Quashing the decision, the judge remitted the matter to the Tribunal for
reconsideration on two questions. The first question concerned the
failure of the Tribunal to explain why the structures involved were
building works (as opposed to plant or machinery). The second
question related to the “invalidity ground” (see below).

c. The matter therefore went before the Tribunal a second time. By a

determination dated 31 July 2013, the Tribunal found that structures (i)
and (ii) were building works…

d. The applicant sought leave to apply for judicial review against the
Tribunal’s determination on both questions. By his judgment dated
7 April 2014, Au J refused leave.

e. The applicant appealed and challenged the judge’s conclusion.

f. Court of Appeal was of the view that the issue of building works
versus plant or machinery was squarely before the Tribunal right from
day one. In particular, the Tribunal mentioned Leung Lai So v The
Building Authority, Appeal Tribunal (Buildings) Case No 44-2005,
31 October 2008, at paragraph 17, it says :-

“… firstly, that there is no precise or exhaustive definition of ‘building’

or ‘building works’ … Instead, in determining whether a structure falls
within the definition of ‘building’, and whether its construction or
erection involves ‘building works’, the Court or Tribunal has to look at
all the circumstances of the case. Relevant factors may include the
followings:-

(i) the degree of fixation of the structure;

(ii) the degree of permanence of the structure;
(iii) the size of the structure;
(iv) the intended use of the structure;
(v) whether the structure is provided with facilities such as power
and water;
(vi) the ease with which the structure may be removed or
dismantled;
(vii) the ease with which the structure was constructed and
ensembled.”

g. In paragraph 19 of the determination, the Tribunal explained why it

had come to the conclusion that (i) was a building work: “As said, this
Tribunal has the benefit of a site inspection and careful inspection of (i)
with its size, heavy weight and degree of permanence. (i) cannot be
easily removed, dismantled constructed or ensembled. This Tribunal
cannot ignore the functional aspect of (i). However, all in all, (i) gives

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this Tribunal an impression that it cannot be said to be mobile, it has a

considerable disagree of permanence, its considerable size and weight,
it cannot be removed easily, it is supplied with cable and electricity, it
is used as an office as well. The loading of (i) would no doubt
structurally affect the integrity of the Building, i.e. the 1/F Carpark.
Thus, this Tribunal arrives at its decision given on paragraph 66 of its
Decision that (i) is building works and falls within the definition of the
BO.”

h. Likewise, the Tribunal summarised its reasons for concluding that (ii)
was also a building work in paragraphs 26 to 28 of its determination:
“26. This Tribunal accepts the intended use of (ii) is for loading and
unloading purpose. But this will not mean for this very factor, it will
fall outside the definition of building. 27. (ii) itself is 400,000 lb in
weight and it gives this Tribunal an expression that it is a huge and
complex structure consisting of a number of substantial size metal
elements connected, if not welded together. It is anchored and bolted to
the Building and cannot be moved around. The degree of permanence
is apparent. Further, it is supplied with electricity. The water tanks
thereon are connected to the water mains of the Building. It cannot be
moved to another location without dismantle the whole structure. No
doubt its erection and dismantling require operations normally
associated with normal building works…”

i. As to the second question on “invalidity ground”. In short, the judge

took the view that the demolition and reinstatement works ordered to
be carried out under the building order were subject to s14 of BO
which requires the obtaining from the BA of his approval in writing of
the building plans and his consent in writing for the commencement of
any proposed building works – which, as a matter of definition, include
demolition and reinstatement works. The judge apparently accepted the
argument that a s24 building order cannot override the requirement for
approval and consent under s14 (where applicable)… s24 only gives
the BA the power to fix the times for commencement and completion
of works. It does not give the BA the power to impose the requirement
for obtaining his agreement to plans (independent of s14)…

9. Structural submission, see ADM-8.

10. Required standards on design and material. See APP-53.

11. APP-60 on the list of specified forms in the Appendix A.

 Form BA4, Appointment of AP/RSE

 Form BA5, Application for approval
 Form BA6, Stability Certificate
 Form BA16, Application for exemption/modification
 Form BA8, Application for consent

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FORM PURPOSE OF FORM BO/R

BA 1 Application for inclusion in the authorized persons’ register / structural engineers’ register BO s3(6)
BA 1A Application for retention of name in the authorized persons’ register / structural engineers’ BO s(9B)
register
BA 1B Application for restoration of name to the authorized persons’ register/structural engineers’ BO s3(12)
register
BA 2 Application for registration as a general building contractor / specialist contractor in the BO s8B
________ category
BA 2A Application for renewal of registration as a general building contractor / specialist contractor in BO s8C(2)
the ________ category
BA 2B Application for restoration of name to the register of general building contractors / specialist BO s8D(2)
contractors in the ________ category
BA 2C Application for approval of person(s) appointed to act for a registered general building contractor BO s8B
/ registered specialist contractor in the ________ category
BA 3 Application for inclusion in the register of ventilation contractors BO s8(2)
BA 3A Application for retention of name in the register of ventilation contractors BO s8(4A)
BA 3B Application for restoration of name to the register of ventilation contractors BO s8(8)
BA 4 Notice of appointment of authorized person and / or registered structural engineer BO s4
B(A)R r23
BA 5 Application for approval of plans of building works and / or street works and certificate of BO s14(1)(a)
preparation of plans B(A)R r18A
& r29
BA 6 Stability Certificate of Authorized Person and / or Registered Structural Engineer B(A)R r18
BA 7 Notice of urgent works required as a result of accident or emergency BO s19
B(A)R r28
BA 8 Application for consent to the commencement and carrying out of building works or street works BO s14(1)(b)
B(A)R r31
BA 9 Application for renewal of consent to the carrying out of building works or street works BO s20
BA 10 Notice of appointment of registered contractor, notice of commencement of building works or BO s9
street works and undertaking by registered contractor B(A)R r20
BA 11 Notice from a registered contractor on ceasing to be appointed in respect of building works or B(A)R r24
street works and certificate in respect of that part of the building works or street works carried out
by the registered contractor
BA 12 Certificate on completion of building works resulting in a new temporary building, a new building BO s21
or part of a new building and application for temporary occupation permit in respect of such B(A)R r25
building or part
BA 13 Certificate on completion of building works resulting in a new building and application for permit BO s21
to occupy such building B(A)R r25
BA 14 Certificate on completion of building works not resulting in a new building or of street works B(A)R r25 &
r26
BA 15 Notice of intended material change in the use of a building BO s25
BA 16 Application for modification of and / or exemption from the provisions of the Buildings BO s42
Ordinance and / or regulations made thereunder
BA 17 Application for permit to erect a temporary building B(P)R r51
BA 18 Application for permit to erect a contractor’s shed B(P)R r53
BA 19 Application for permit to erect hoardings, covered walkways or gantries B(P)R r64
BA 20 Notice of person appointed to supervise demolition works B(DW)R r8
BA 21 Notice of nomination by authorized person or registered structural engineer of another authorized BO s4(2)
person or registered structural engineer to act in his stead during temporary inability to act B(A)R
r23(2)
BA 22 Application for authorization to carry out and / or maintain groundwater drainage works BO s28B(1)
BA 23 Application for grant / renewal of licence for an oil storage installation B(OS1)R
r6(1) & r7(3)
BA 24 Notification to the Building Authority of change of business address of authorized person / B(A)R r45
registered structural engineer / registered general building contractor /registered specialist
contractor in the ________ category

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12. APP-97 – Consent procedures for fast-track procedure – Type II works.

13. For alteration and addition works in existing buildings, see APP-117.

14. Fee are chargeable upon application for approval, see APP-55.

15. When will be the relevant law to apply? See Attorney-General v. Firebird Ltd (PCA
17/82). The Privy Council decided that on an application for approval of plans for
building works under section 14(1)(a) of the Ordinance, the law which the Authority
is obliged to apply is the law applicable on the date when the Authority considers the
plans. That applies even if the law has been changed since the date on which the plans
were submitted to the Authority for approval.

16. See also Super Mate Ltd. (HCMP 200/1994) and Re Head Step (CA 131/1995).

4.0 Supervision plans

17. BO s39A authorises the Secretary to publish a technical memorandum. Note BO

s39A(7), “a technical memorandum … is not subsidiary legislation”.

18. BO s14A requires the AP to lodge a supervision plan for the building works or street
works.

19. Requirements for qualified supervision, see APP-28 and BO s17(1)(6)(e).

20. APP-48: Requirements for Qualified Supervision of Structural Works, Foundation

Works and Excavation Works - Buildings Ordinance section 17.

21. Technical Memorandum for Supervision Plans 2009.

 Originally published in 1997 and came into operation in 22nd December 1997
 2nd edition came into operation on 31st December 2005
 This edition came into operation on 31st December 2009
 Paragraph 4.2(a): quality supervision in accordance with BO and Regulations
 Paragraph 4.2(b): safety supervision to mitigate/control hazards/risk
 Paragraph 4.3: management structure for site supervision
 Paragraph 5.7: engineering safety supervision
 Paragraph 5.8: routine safety supervision
 Exceptions: see the list under paragraph 11

22. Code of Practice for Site Supervision 2009.

 Draft Code of Practice for SSP (refined in November 2000) was revised to
Code of Practice for SSP came into effect on 31st December 2005. This is the
latest edition.
 Scope: quality supervision and site safety supervision
 Routine safety supervision: T1 to T3

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 Engineering safety supervision: T4 to T5

 Combined TCPs
 Temporary works
 More frequent supervision requirements
 Non-conformity (defined in TMSP 2009 as “situation where the conditions on
site, the methods or measures adopted or the completed works do not conform
to the provisions of this Technical Memorandum, or the Code of Practice, or
the Supervision Plan or supplementary documents such as the approved plans,
method statements or statements of precautionary and protective measures”)
 Additional site supervision requirements during critical stages

23. Safety Management System

Aggregate number of workers working

Duty holder
Category 1 Category 2 Category 3 Category 4
Contractor of ≧100 in a day in a ≧50 but < 100 in a day ≧100 in a day in 2 or ≧50 but < 100 in a day
construction work single construction site ; in a single construction more construction sites in 2 or more
or contract value ≧ $100 site construction sites
million
Duties in respect of Implement 10 elements Implement the first 8 Implement 10 elements Implement the first eight
safety management in the safety elements in the safety in the safety elements in the safety
system management system management system management system management system
Conduct of safety audit Conduct of safety Conduct of safety audit Conduct of safety
review review

Schedule 4 under the F&IU (Safety Management) Regulation

Part 1 Part 2
1. Safety policy 1. Evaluation, selection and control of sub-
2. Organisational structure contractors
3. Safety training 2. Safety committees
4. In-house safety rules Part 3
5. Inspection programme 1. Job hazard analysis
6. Hazard control programme 2. Safety and health awareness
7. Accident/incident investigation 3. Accident control and hazard elimination
8. Emergency preparedness 4. Occupational health assurance programme

24. As to the remaining 4 elements, the CoP suggests that “The implementation of the
Safety Management Regulation will be reviewed one year after the Regulation has
come into force to decide on the appropriate time to bring the remaining 4 elements
listed in Part 3 of Schedule 4 into operation.”

25. In practice, these 4 elements are generally applied in the SMS.

26. PNRC64: Site Safety Enhancement

 This practice notes enhance the coordination of the Site Supervision Plan
System (SSPS) under the Buildings Ordinance (BO) and the Safety
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Management System (SMS) under the Factories and Industrial Undertakings

(Safety Management) Regulation (SMR).
 The BO is concerned primarily with the health and safety of buildings and
associated works to ensure safety of the occupants and the public. Under the
SSPS, site supervision is required to ensure safe building operations.
 The FIUO and its subsidiary legislation deal mainly with the safety and health
of workers at work. Under the SMR, a contractor is required to develop,
implement and maintain a SMS, which aims at safeguarding workers’ safety
and controlling risk of injury arising from work activities.
 The duty holders under the two systems are mostly different. The AP, RSE,
RGE, RC and their TCPs are duty holders under the SSPS, whereas, the
principal contractor, sub-contractors and sub-sub-contractors are duty holders
under the SMS.
 There is, however, a common duty holder, the main contractor, who is the RC
under the SSPS and the principal contractor under the SMS. It is considered
that the Authorized Signatory (AS) of the RC may play a more proactive co-
ordinating role in the implementation of the two systems.
 All in all, the RC is advised to coordinate the requirements of the SSPS and
the SMS.

Ir Dr Lam Siu Shu Eddie

MSc, PhD, PgD(Law), PCLL, CEng, FIStructE, MIMechE, FHKIE, RPE,
RSE, Class-1 RSE PRC, RI,
Barrister
Dated: 16th January 2019