The Inadequacy of Hong Kong's Conservation Legislation

The author believes that the recent Section 16 planning application of No.27 Lugard Road highlights the flaws of Hong Kong’s conservation legislation, and inspiration should be sought further afield from places like Macau and Singapore.

On 30 May 2013, it was reported in several newspapers that the owner of No.27 Lugard Road (the “Owner”) had applied to the Town Planning Board under Section 16 of the Town Planning Ordinance for change of use from residential to a proposed heritage hotel.

The Town Planning Board received a total of 90 comments from the public regarding the application. Some of them took the view that Lugard Road could not sustain the traffic generated from the proposed hotel and the proposed use would adversely affect the serenity in the vicinity.

According to Wikipedia, Lugard Road, which is named after Sir Frederick Lugard (the former governor of Hong Kong from 1907-1912), is a semi-circular and narrow path surrounding the Peak. Construction of the road began in 1913 and completed after the end of the First World War. The road is part of the Hong Kong Trail and is very popular amongst locals and tourists. From Lugard Road, one can easily enjoy the panoramic view of Victoria Harbour and its accompanying cityscape. It is however, relatively inaccessible as cars cannot pass through in most parts, which means there are only a few houses situated there.

A land search shows that No.27 Lugard Road was acquired by a company in early 2013 for HK$383.8 million. As revealed in the Executive Summary of the planning application made by the Owner, there is an existing house on the lot with a distinctive architectural design, built around 1916.

As the building is located on a lot zoned “Residential (Group C)” under the Peak Area Outline Zoning Plan No.S/H/14/11, the proposed adaptive re-use of the building as a heritage hotel requires approval from the Town Planning Board.

Under the proposal, the existing heritage building will be conserved and two small two-three storey villas will be constructed as part of the proposed hotel.

The outcome of the application of course depends on the decision of the Town Planning Board. At press time, the fate of No.27 Lugard Road remains unknown. The special location and circumstances of the site should be crucial considerations for the Town Planning Board.

Yet, the significant impact is not the outcome of the application, but the reflection of the inadequacy of the present conservation policy and legislation in Hong Kong.


Two levels of heritage protection

Grading of historic buildings

In Hong Kong, there are mainly two levels of protection for heritage buildings. On the administrative level, the Antiquities Advisory Board (the “Board”) has since 1996 confirmed the grading of 1,444 historic buildings according to six criteria: historical interest, architectural merit, group value, social value and local interest, authenticity, and rarity. According to the information provided on the official website of the Antiquities and Monuments Office, there are three levels of grading for graded historic buildings -

Grade 1: Buildings of outstanding merit, which every effort should be made to preserve if possible.
Grade 2: Buildings of special merit; efforts should be made to selectively preserve.
Grade 3: Buildings of some merit; preservation in some form would be desirable and alternative means could be considered if preservation is not practicable.

Graded historic buildings are however not subject to statutory protection.

Declaration of monuments under the Antiquities and Monuments Ordinance

The second level of protection comes from the power of the Secretary for Development (the “Secretary”) to declare properties as monuments under the Antiquities and Monuments Ordinance (Cap. 53 of the Laws of Hong Kong). In Hong Kong, the principal piece of legislation for conservation is the Antiquities and Monuments Ordinance (Cap. 53 of the Laws of Hong Kong) (the “Ordinance”).

Like its name, the Ordinance itself is a piece of antique. It was enacted in 1976 with only minor amendments since enactment. Although former Chief Executive Donald Tsang formally pronounced a conservation policy for Hong Kong in his Policy Address in 2007 and the present Chief Executive Leung Chun Ying agreed on the importance of conservation in his Manifesto for Election, the Ordinance has received scant official attention.

Under Sections 2A and 3 of the Ordinance, the Secretary with the consultation of the Board is empowered to declare a property as a proposed monument or monument. However, the criteria for declaring a property as a proposed monument or monument are not clearly defined in the Ordinance. Sections 2C and 4 of the Ordinance allow the owner or any lawful occupier of the property to object to the declaration, and the Chief Executive in Council has the final say on the objection lodged by the owner or lawful occupier.

As in the Hotung Gardens case, the Secretary for Development first declared the property as a proposed monument under Section 2A of the Ordinance. According to Section 2B, the declaration of a proposed monument is only valid for 12 months from the making of it. For private properties, the 12-month period cannot be extended.

One would remember that after Hotung Gardens were declared a proposed monument, the owner of that property fought very hard in objecting the declaration. Ultimately, the Government withdrew the declaration.


Comparison with Macau and Singapore

Unlike neighbouring cities Macau and Singapore, Hong Kong does not have sufficient statutory protection or incentives to owners of private historic buildings. Although Section 7 of the Ordinance empowers the Secretary to grant funds to owners to carry out renovation, preservation or restoration works to monuments, the criteria for the grant, and the amount of funds are not clearly set out in the Ordinance.

Section 21 of the Ordinance further ties the hands of the Government by providing that the said funds must be from moneys approved from time to time by the Legislative Council. Given the current political climate, one would not expect a straightforward debate in approving such funding.

The Ordinance also only protects places, buildings, sites or structures of historical, archaeological or paleontological significance. Its main focus is buildings. On the other hand, conservation legislation in Macau and Singapore covers ensembles, sites and groups of buildings, and even allows for protected areas and buffer zones.

The Macau and Singapore governments not only provide fiscal incentives to owners of historic buildings, but also to commercial and industrial concerns which set up business in those buildings. These two cities have also built in a mechanism for the Government to claim preferential right to acquire monuments or even expropriate historic properties when the situation calls for it.


The No.27 Lugard Road application

It is surprising and difficult to understand why No.27 Lugard Road, steeped in history and distinctive architectural value, is not yet graded a historic building as at June 2013. While media reports have set out that the Board is finally prepared to assess the building and may give it Grade 2 status, it offers no statutory protection or incentive and so does not help the owner and the people of Hong Kong preserve this piece of historic asset.

As the Owner is willing to preserve the building at his own cost and reuse it as a hotel, I think we should appreciate and adopt a more open mind on the planning application, which may be the best option in view of the limitations of our present conservation policy and resources. For instance, to resolve the traffic impact and so aid in the conservation of the property, the Town Planning Board may impose conditions such as the use of the shuttle bus at specified time intervals.


Way forward

In the research report on Built Heritage Conservation Policy in Selected Places prepared by Michael Yu of the Legislative Council Secretariat, it is mentioned that the Government had in fact considered the desirability of revamping the Ordinance or introducing a new ordinance for heritage conservation to improve the statutory protection of historic assets. However, the report also revealed that at the end, the Government decided instead to keep the Ordinance unchanged.

Although we cannot simply borrow whole sets of conservation legislation and policies from Macau and Singapore, given each city’s unique characteristics, we should seriously consider and press for a more comprehensive and transparent conservation legislation and a holistic approach on conservation.

Apart from Hotung Gardens and No.27 Lugard Road, there are still other private historic buildings, especially in the city areas, where urgent protection is needed, lest these priceless cultural assets vanish under rapid urban redevelopment.

By Kong Yuk Foon Doreen, Partner Reed Smith Richards Butler