Minutes of Meeting of the Bills Committee to study
the Buildings (Amendment) (No. 3) Bill 1995

I. Meeting with the Administration

A joint submission setting out an alternative proposal by the Hong Kong Institute of Architects (HKIA), the Hong Kong Institution of Engineers, the Hong Kong Institute of Surveyors and the Real Estate Developers Association of Hong Kong was tabled at the meeting. To facilitate discussion on this proposal, Members invited Mr Dennis LAU of the HKIA who was at the public gallery to attend the meeting.

Action

2. Mr Edward HO took Members through the joint submission. Mr HO highlighted the following points :

1. To overcome the shortcomings of a prescribed supervision plan, the four organisations proposed that as a condition for consent to commence works, the Building Authority (BA) might designate periods of site activity during which the building owner should appoint technically competent persons (TCP) to assist the AP and RSE in discharging their supervisory duties. Such a condition would be binding and the non-compliance of which would result in revocation of consent by the BA.
2. A separate supervision plan should be prepared by each of the parties involved in the building process, i.e. AP, RSE and RC. The supervision plan should set out the party’s own sphere of responsibilities in relation to supervision, how and by whom the duties would be carried out. As such, there would be clear delineation of duties. The different supervision plans would be coordinated by the AP. The format of a supervision plan, to be agreed by the BA and the professional institutions, should be standardised and spelt out in the Practice Note to be issued by the BA.
3. There would be a hierarchy of sanction for failure to supervise works. The organisations proposed to extend the purview of the disciplinary board appointed under the Buildings Ordinance to consider negligence of AP or RSE in carrying out supervisory duties. The BA might revoke consent should the TCPs be absent for a specified period without being notified. In the event that the building owner, AP, RSE or RC wilfully allowed construction works to proceed in the absence of TCPs for a specified period of time, the person concerned should be guilty of an offence.

3. Comparing the alternative proposal with the proposal in the Bill, Members were concerned how the practical difficulties associated with a prescribed supervision plan could be avoided under the former. Mrs Selina CHOW and Mr Albert CHAN sought clarification on the differences between the approval of a supervision plan by the BA and the submission of a supervision plan as a condition for consent to commence building works. Without the need to secure the BA’s approval, Mr Albert CHAN questioned whether a supervision plan would achieve its intended purpose in respect of site safety.

4. Responding to Members’ enquiries, Mr Dennis LAU said that the Hong Kong Construction Association had not been consulted on the alternative proposal. Mr Dennis LAU explained that the alternative proposal would achieve the objective of enhancing site safety without creating impracticalities in a building operation. Under the alternative proposal, the BA would require the submission of a supervision plan by the building professionals as a condition for consent to commence works. The requirements of a supervision plan would be spelt out in the Practice Note to be worked out and agreed by both the BA and the professionals. Since there was no need to secure the BA’s approval and given that the BA was statutorily required to respond to an application for consent to commence works within one month, this approach would greatly reduce the time required by the BA to process a supervision plan. Mr Dennis LAU emphasised that the idea of setting out the requirements in a practice note was not novel. This had already been in use in respect of geotechnical works. As non-adherence to the supervision plan deposited with the BA would trigger the BA to issue cease works order or to revoke consent, these sanctions should have sufficient deterrent effects.

5. Mr Trevor KEEN said that the Administration would have to study the proposals before giving its detailed comments. As an initial response, Mr Trevor KEEN said that the bottom line of the Administration was to require the submission of a supervision plan which was acceptable to the BA before the commencement of works. The Administration considered it a sensible idea to spell out the format and the requirements of a supervision plan in the Practice Note. However, the Administration was concerned whether under the alternative proposal, the consent to the commencement of works was expected to be automatic upon the submission of a supervision plan. In the Administration’s view the proposal involved a fundamental change from criminal sanction for failure to supervise works under the Bill to disciplinary action for negligence of AP/RSE in performing their supervisory duties. The proposed hierarchy of sanction was noted. Mr Trevor KEEN considered the alternative proposal unclear as to the meaning of the phrase "wilfully allow construction works to proceed", where and how the period would be specified, and how the BA would be notified of the absence of TCPs of AP or RSE (Ref: items D and E in the joint submission). Mr CHENG Wei-dart said that the Administration welcomed the idea to appoint TCPs to assist AP/RSE and RC in supervising works. Although TCPs would be expected to station on site more frequent than the AP/RSE, Mr CHENG considered that the ultimate responsibility for supervision should still rest with the AP/RSE. Dr Y L CHOI said that the Administration’s prior concern was to assure safety of building projects. To this end, the Administration would examine the details of the proposal.

Adm

6. On Mr Albert CHAN’s query regarding any differences between the two proposals as far as the Government was concerned, Mr CHENG Wei-dart said that under the Administration’s proposal, deviation from an approved supervision plan would constitute a criminal offence. Under the alternative proposal, a supervision plan would not be approved by but only deposited with the BA. As such, departure from the plan would not be regarded as committing an offence. The course of action open to the Government under the alternative proposal would be revocation of consent.

7. To assess whether the alternative proposal was more workable than the Administration’s proposal, Members considered that the meaning of a "prescribed supervision plan" and the timing in submitting such a plan should be clarified in the first place. In response, Mr Trevor KEEN said that the phrase referred to the making of a plan prescribed under the Buildings Ordinance. A supervision plan would identify the critical stages of works where a particular level of supervision was considered necessary. Such a plan should be agreed by the AP/RSE and the BA before the works commenced. It had been the Administration’s intention that the parties concerned would work out a standard format of such a plan and that each party would have inputs to the plan to be coordinated by the AP/RSE. As such, there should be clear delineation of responsibilities among the different parties in relation to site supervision. As to the timing in submitting a supervision plan, Mr Trevor KEEN made it clear that the Administration only required that a supervision plan should be in place before the works started. The Administration had not asked for the submission of a supervision plan together with the general building plan. Mr CHENG Wei-dart said that the approval of the general building plan would not be contingent on the submission of a supervision plan. The Administration’s intention was that even though all the other plans in relation to the building operation had been approved, the persons concerned could not start works before the approval of a supervision plan.

8. The Chairman said that there was an element of uncertainty in a prescribed supervision plan as the building professionals would be unsure of the extent of supervision expected by the BA. In reply, Mr CHENG Wei-dart said that it was intended that AP/RSE should be responsible for supervision at some stages of works. The extent of supervision was a matter for the AP/RSE and RC who were expected to exercise their professional judgement.

9. Members considered it necessary to set up a Subcommittee to study the technical details of the alternative proposal. The Chairman, Mr Edward HO, Dr Samuel WONG and Mr Albert CHAN agreed to join the Subcommittee.

10. The Chairman considered that clarifications on the alternative proposal regarding the following points were necessary :

The four organisations

1. the definition of TCPs;
2. the sort of supervision plans put forward by the AP, RSE and RC;
3. the uniform format of supervision plans;
4. the meaning of "negligence" of AP/RSE in carrying out supervisory duties;
5. the meaning of "specified period" of absence of TCPs;
6. how the BA would be notified of the absence of TCPs; and
7. the system for easy replacement of TCPs.

11. To facilitate the Subcommittee’s discussion, the Chairman requested the Administration to advise on the interpretation of the word "wilfully" under the existing legislation and to provide a copy of the Practice Note on Geotechnical Works.

Adm

II. Date of Next Meeting

12. The first meeting of the Subcommittee was scheduled for 15 February 1996 (Thur) at 10:45 a.m.

13. The next meeting of the Bills Committee would be held on 16 February 1996 (Fri) at 10:45 a.m.

14. The meeting ended at 12:30 p.m.

LegCo Secretariat
7 March 1996