Apart from the decision to exclude the public transport terminus, the decisions former Building Authority Leung Chin-man made in the Sai Wan Ho development project were reasonable and proper, according to the independent inquiry committee's report. It added maximum gross floor area control should be restored.

The Chief Executive appointed the committee last November. It examined the procedures in approving the site classification, gross floor area exemption for the public transport terminus and bonus gross floor area for dedication of the reserved area for public passage in respect of the Sai Wan Ho building plans application.

It also reviewed whether the Building Authority's discretionary powers had been exercised properly and how the concerned departments may better perform their functions in these areas in future.

In its report published today, the committee noted the application for public transport terminus exemption caused Mr Leung difficulties because the treatment of public transport termini in the past had been inconsistent.

The public transport termini's gross floor area had been excluded from time to time under Buildings (Planning) Regulations 23(3)(b). The legal advice which indicated that if he found as a fact the public transport terminus was constructed solely for motor vehicle parking, or loading or unloading, the regulation applied.

While this decision was wrong, the committee said Mr Leung as the Building Authority is neither to be blamed nor criticised in the particular circumstances. Others might have decided differently but from previous cases and the legal advice, it was open to him to apply the regulation to exclude the public transport terminus. With this important background, the decision was reasonable.

Excessive provision

The committee considers Buildings (Planning) Regulations 23(3)(b) applies only when the relevant facility is provided and not excessively provided for the parent building or its occupants. Even if the decision was reasonable on the facts, the public transport terminus was not provided for the parent building or its occupants, so it is outside the scope of the regulation.

These decisions made 19,937-square-metre additional gross floor area available to the developer. In practice this increased the bulk and density of the development by approximately eight floors on each of the five towers - or roughly a total of 280 flats.

Apart from necessary exemptions under Buildings (Planning) Regulations 23(3)(b), there were other exemptions granted by Mr Leung under a joint policy of the Buildings, Lands and Planning Departments to encourage developers to provide "green and innovative buildings" by excluding from gross floor area balconies, wider common corridors, bigger lift lobbies, communal sky gardens, communal podium gardens and the like.

There was also a policy to encourage other amenities, recreational areas such as a clubhouse, play areas and so forth. These were also exempted from gross floor area under Buildings Ordinace section 42.

Consequences follow improved amenities

The committee pointed out this is praiseworthy policy which will improve the lives of many who live in the buildings concerned. But there are consequences. The more exemptions are given the higher, the more bulky and the more dense the building will become. In this case more gross floor area was exempted under the provisions of this policy than was granted or allowed by the Building Authority in the decisions under review.

Therefore, the committee considered the legislative control of the development was relaxed, not only by the misapplication of Buildings (Planning) Regulations 23(3)(b) to the public transport terminus by the Building Authority, but also by the watering down of the control under Buildings Ordinance section 42 for praiseworthy motives.

Suggested improvements

The committee said if the height, bulk and density of this development were too great, then the reason was lack of legislative control. Control of the maximum gross floor area should be restored, and this may be done in the following ways:

* the legislation and amended Buildings (Planning) Regulations 23(3)(b) should be reviewed to include the green, amenity and similar features so that they can be excluded under the regulation. This would also have the effect of avoiding the use of Buildings Ordinance section 42 in a routine way. The legislation could then be strictly applied;

* Planning Department should impose control in co-operation with the Town Planning Board so as to place appropriate restrictions on outline zoning plans. Further, planning policy should be reflected in the special conditions of the lease. Close consultation and co-operation between the departments involved in the development of government land and its control is necessary. Imposing a cap on gross floor area exemptions, granting of bonus gross floor areas and a maximum gross floor area in the lease conditions are measures should be pursued;

* the exercise of discretion by the Building Authority would be considerably assisted by the drafting of special conditions which clearly set out what is required of the developer. The principle should be that the special conditions are drafted with as much certainty and clarity as possible;

* the action already undertaken to examine the imposition of maximum gross floor area and capping the amount of gross floor area which may be exempted as means of control should be urgently pursued; and

* in controlling development of this kind, increased co-ordination and co-operation between the departments involved should be promoted under the bureau's guidance.

To read the full report or its summary, click here.