Provisional Legislative Council

PLC Paper No. CB(1) 1183

Ref : CB2/BC/6/97

Paper for the House Committee meeting
on 13 March 1998
Report of the Bills Committee on Fire Safety (Commercial Premises) (Amendment) Bill 1998

Purpose

This paper reports on the deliberations of the Bills Committee on the Fire Safety (Commercial Premises) (Amendment) Bill 1998 and seeks members' support for the Bill to resume its Second Reading debate on 25 March 1998.

The Bill

2. The Fire Safety (Commercial Premises) Ordinance (19 of 1997) (the Ordinance), requires improved fire safety measures to be taken in respect of prescribed commercial premises. Prescribed commercial premises refer to premises with a total floor area exceeding 230my for the conduct of banking activities, conduct of off-course betting, conduct of a jewellery or goldsmith's business, use as a supermarket or department store, or use as a shopping arcade.

3. The Bill seeks to amend the Ordinance by introducing a legislative framework to improve fire safety standards of commercial buildings, being commercial buildings with their building plans first submitted to the Building Authority on or before 1 March 1987 or commercial buildings constructed on or before that date. Under the Bill, the enforcement authorities, i.e. the Director of Buildings and the Director of Fire Services are empowered to require owners or occupiers of specified commercial building to comply with certain fire safety measures. These include the provision or upgrading of fire safety facilities, means of escape, means of access for fire fighting and rescue and fire resisting construction.

4. The Bill represents the Government's response and follow-up action to the recommendations in the Final Report of the Inquiry into the Garley Building Fire.

The Bills Committee

5. At the House Committee meeting held on 23 January 1998, members decided that a Bills Committee should be formed to study the Bill. The membership list of the Bills Committee is in Appendix I.

6. Under the chairmanship of Hon Mrs Selina CHOW, the Bills Committee held three meetings with the Administration.

Deliberations of the Bills Committee

7. While the Bills Committee supports the legislative intent to improve fire safety of old commercial buildings, the Bills Committee has identified a number of issues and concerns. The main deliberations of the Bills Committee is summarized below.

Application and implementation of the Bill

8. The Administration has advised in response to members that the Bill seeks to implement the first phase of Government's plan to improve fire safety standards of pre-1987 old commercial buildings. The first priority is to deal with the some 400 commercial buildings with their building plans first submitted to the Building Authority on or before 23 March 1973 or commercial buildings constructed on or before that date. The installation of sprinkler systems on these buildings was not a mandatory requirement at that time. The Administration aims to complete the first phase in three years after the commencement of the legislation and proceed thereafter to conduct a review to cover the remaining pre-1987 commercial buildings. The Administration has clarified that a building which is partly for human habitation and partly for the purposes of an office etc. (commercial-cum-domestic building) would not be covered by the Bill. Commercial premises, e.g. for the purpose of a club, operated in a commercial-cum-domestic building are not within the purview of the Bill and the Ordinance.

9. The Bills Committee has discussed whether the scope of the Bill could be extended to cover such other commercial premises in old buildings and commercial-cum-domestic buildings. The Administration has explained that the requirements on improvements to fire safety measures prescribed in the Bill for old commercial buildings may not be applicable to other types of buildings. To deal with buildings which fall outside the scope of the Bill, the Administration is conducting a general survey on some 60 000 buildings in Hong Kong. The results of the survey, which is expected to be completed by May 1998, would provide input on areas for improvement and the appropriate measures to be taken to improve fire safety of those buildings, including domestic and industrial buildings.

10. On the suggestion to expedite the implementation plan of the proposed legislation to cover all pre-1987 commercial buildings, the Administration considers the intended time-frame to deal with the first priority of the pre-1973 commercial buildings in three years reasonable, having regard to the outcome of a sample survey conducted in early 1997 on fire safety conditions in old commercial buildings, the fire safety improvement works as required by the Bill, and the problems and difficulties involved. The comments received during the public consultation exercise conducted from May to July 1997 also suggests that reasonable time should be allowed for owners and occupiers of specified commercial buildings to carry out improvement works as required by the Bill.

Definition of commercial building

11. Under clause 4 of the Bill, commercial building refers to a building of which its works plans were first submitted to the Building Authority for approval under regulation 29 of the Building (Administration) Regulations (Cap. 123 subsidiary legislation) on or before 1 March 1987 or constructed on or before 1 March 1987. The Bills Committee has questioned the rationale for using 1 March 1987 as the dividing line.

12. The Administration has advised that a substantially revised edition of the Code of Practice on Minimum Fire Service Installations and Equipment took effect on 1 March 1987. The 1987 Code of Practice prescribes fire service installations that are very close to current standards. Commercial buildings with their building plans first submitted to the Building Authority for approval on or before 1 March 1987 are likely to fall short of the fire safety standards laid down in the 1987 Code of Practice. Therefore, such buildings should be covered by the Bill.

13. The Bills Committee has pointed out the difficulties for owners to ascertain whether their building plans were first submitted to the Building Authority before 1 March 1987. It is also unclear whether buildings with their building plans first submitted before 1 March 1987 but with a major revision to the plans after that date would be subject to the provisions of the Bill. Members have suggested that the Bill should spell out in simple terms the policy intent of targetting at those commercial buildings which fail to comply with the 1987 Code of Practice.

14. The Administration has explained the practical difficulties involved if the Code of Practice is adopted as a way to define what buildings would be covered. Building owners would not be able to readily tell if their building falls within the ambit of the Bill. To ascertain whether a particular building is subject to the Bill, the enforcement authorities would have to carry out physical inspections and comparison between the existing fire safety standards of the building and those in the Code of Practice. The Administration is of the view that it is more appropriate to retain the existing definition in the Bill. The Administration has further explained that if building plans were first submitted before 1 March 1987 and a major revision to the plans was made after that date, date of submission of the revised plans would be regarded as the first submission date. Approval to the revised plans would be made if they complied with the 1987 Code of Practice. Those buildings, therefore, would not be covered by the Bill.

15. As regards those buildings "constructed on or before 1 March 1987", the Administration has clarified its policy intent that this part applies to pre-war buildings which were not required to submit building plans. The Administration agrees to introduce a Committee stage amendment (CSA) to clearly reflect its policy intent.

16. Other technical amendments to the definition of commercial building will be made by the Administration for the purpose of clarity.

Prohibition order

17. Under proposed sections 7A and 8A (clauses 8 and 10), an enforcement authority may apply to the District Court for an order prohibiting occupation of a specified commercial building on the ground that a requirement of a fire safety improvement direction or a fire safety improvement compliance order is not being, or has not been, complied with in relation to the building. Where a prohibition order is in force, the enforcement authority may permit any person to occupy the building in such conditions as the authority thinks fit. The Bills Committee is concerned about the difficulties to ensure that all the owners conform to the fire safety requirements. If an owner of a particular unit of specified commercial building fails to comply with a fire safety improvement direction or a fire safety improvement compliance order, a prohibition order may still be made prohibiting the occupation of the whole building. This would be unfair to other owners who have conformed to the requirements. The Committee is also concerned whether sufficient safeguards are in place against misuse of a prohibition order.

18. The Administration has pointed out that prohibition orders can be served on the whole or a part of a specified commercial building, given the definition of "specified commercial building" in clause 4 of the Bill. For instance, if the owner of an individual unit fails to comply with a fire safety improvement direction or a fire safety improvement compliance order, a prohibition order may be issued by the District Court to prohibit the occupation of that unit only. At members' suggestion, the Administration agrees to move CSAs to make it clear that the application for and making of a prohibition order should be made on the basis of a unit of a specified commercial building, rather than the whole building.

19. As regards the making of a prohibition order, the Administration has pointed out that the District Court may make an order only if it is satisfied with the circumstances stipulated in proposed 7A(6). To address members' concern, the Administration agrees to move CSAs to provide an additional safeguard so that when making a prohibition order, the District Court has to be satisfied that there could be substantial fire risks if the affected unit or part is occupied.

Flexibility in enforcement of construction requirements

20. On the pragmatic and flexible approach adopted by the Administration in enforcing the construction requirements for fire safety, the Bills Committee is concerned as to how flexibility would be exercized. Members consider that the extent of flexibility and the test of reasonableness should be clearly spelt out in the Bill. Leaving too much discretionary power to the enforcement authority may give rise to uncertainty. Clear guidelines should be provided to the industry and affected parties.

21. The Administration has explained that the enforcement authority would, having regard to the circumstances of the case, accept other appropriate alternative measures for improving building structures for fire safety in place of the requirements in the Codes of Practice for the Building Department (BD). A Practice Note for Authorized Persons and Registered Structured Engineers published by BD in August 1997 provides general guidelines on implementation issues relating to the Ordinance. A new Practice Note providing guidance on fire engineering approach for the design of new buildings or alteration and addition works in existing building to meet fire safety objectives and requirements as an alternative to the prescribed requirements set out in the BD's Codes of Practice would soon be issued. In addition, a Fire Safety Committee comprising representatives of BD, Fire Services Department and non-official experts has been set up to examine and advise on the flexible approach of alternative remedial proposals.

Flexibility for fire service installations

22. To allow flexibility in the fire service installation requirements, the Administration agrees to amend clause 6 to allow owners of commercial buildings to adopt other appropriate measures in place of any of those requirements specified in paragraph (a) of Schedule 5.

Fire Safety Improvement Fund

23. The Bills Committee takes note of the Administration's plan to set up a $200 million Fire Safety Improvement Fund (Fund) to provide loans to owners who are required under the existing Ordinance and the Bill to upgrade or improve the fire safety standards of their premises or buildings. The Bills Committee has questioned the adequacy of the amount of the Fund and how the Fund would be operated.

24. The Administration is of the view that the amount of the Fund is a reasonable size to cater for the first phase of implementation of the Ordinance and the Bill. The amount is calculated on the basis of the findings of surveys on the fire safety conditions of prescribed commercial premises and old commercial buildings conducted in early 1997 and the assumptions that only a small portion of the prescribed commercial premises and specified commercial buildings affected by the legislation will apply for the loan. The amount of the Fund will be reviewed in the light of practical experience. The Fund will be operated on a revolving basis. Repayment of loan will be due one month after drawdown of the loan. A loan will be released by stages according to the progress of upgrading works.

25. Members express concern about the mode of operation of the Fund and request the Administration to re-examine its operational details in order to provide practical assistance to the parties in need.

Committee stage amendments

26. Apart from the CSAs mentioned in the above paragraphs, the Administration has also agreed to move other technical and minor amendments to the Bill. A set of the draft CSAs to be moved by the Administration is in Appendix II.

Recommendation

27. The Bills Committee recommends that the Second Reading debate of the Bill be resumed at the Provisional Legislative Council meeting on 25 March 1998.

Advice sought

28. Members are invited to support the recommendation of the Bills Committee at paragraph 27 above.



Provisional Legislative Council Secretariat
4 March 1998

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Bills Committee on Fire Safety (Commercial Premises) (Amendment) Bill 1998