Buildings in Hong Kong: Missing Links to Health and Value

This article discusses the nexus between public health and buildings and the consequences of failure to take health issues into consideration while designing buildings.

The recent Severe Acute Respiratory Syndrome (‘SARS’) crisis has prompted a great deal of soul searching in Hong Kong of late. As a construction lawyer, it is possible to share some observations from this perspective. First of all, one may begin by noting that many in Hong Kong feel let down by their buildings and the way they appear to have been maintained. Why is this? There are two short answers. First, many individuals in Hong Kong appear to have lost sight of the link between buildings and health. Second, few think about how maintaining the buildings they live and work in will actually add to their capital value. These two propositions may be looked at in turn.

Health and Buildings

It may be asked how many knew, much less cared before SARS, that the earliest buildings legislation in Hong Kong was intended to protect public health! Way back in 1844, An Ordinance for the Preservation of Order and Cleanliness was passed to deal with dilapidated buildings. It provided limited planning and construction standards such as prohibiting the encroachment of Crown land and the use of inflammable materials in construction as well. In the years that immediately followed passage of the legislation, inbound immigration to Hong Kong swelled the population and further contributed to the deterioration of living conditions as well as buildings.

Early Reports

Recognising it had a problem on its hands, the government of the day’s response was to commission a report into the root problems. The Dempster Report was released shortly thereafter and followed by the passage of additional controls in 1856, in the Buildings and Nuisances Ordinance. This legislation prescribed construction standards such as the thickness of walls, depth of foundations and use of certain building materials. It also set out basic sanitary requirements.

For the programme of measures in the legislation to work though, required strong enforcement action. In the 1850’s this task fell to the Surveyor General and while he tried to implement such measures he nevertheless failed. In short, the continued growth in population and the demand for cheap accommodation outstripped lax administration and enforcement. Overcrowding and insanitary conditions in Hong Kong worsened. The Government’s response was to commission another report by an English sanitary engineer, Osbert Chadwick. The Chadwick Report bears the name of this engineer and was released in 1882.

Chadwick concluded that the insanitary conditions were a menace to public health and recommended that new building legislation be passed. The enactment of the Public Health Ordinance in 1887 furthered these calls. This legislation set up a Sanitary Board that was empowered to close premises unfit for human habitation as well as to close overcrowded buildings. The legislation even provided that a new building could not be occupied until the Sanitary Board had inspected it. With the momentum that had been created, a new Buildings Ordinance was passed as well in 1889. This resulted in the repeal of the original Buildings and Nuisances Ordinance. The dual main object of the legislation was to improve structural stability and sanitary conditions. The legislation closely followed model bylaws, which had been enacted under the UK Metropolitan Building Act. These bylaws, in England, were initially introduced to prevent building practices that would be injurious to health and safety. Hence the same association between buildings and health defined both the early English as well as Hong Kong building legislation. Without looking into the details, it may be surmised that Singapore too drew upon these English precedents. Under both the Hong Kong and the UK legislation, apart from measures which addressed structural stability and the use of combustible materials, many measures also addressed the sanitary conditions. Some of these measures also dealt expressly with improved ventilation. This emphasis is particularly noteworthy because it has been shown in the reports looking into the spread of SARS in Hong Kong, particularly in relation to one outbreak at Amoy Gardens, since insufficient ventilation has been attributed to be one of the causes of the transmission of the disease in that instance.

Bubonic Plague

With the number of new pieces of legislation that the government of the day had been able to pass in a rather short space of time, it assumed that it had the situation under control. It was wrong as the measures in the legislation proved no match for the arrival of the bubonic plague in Hong Kong from Guangzhou in the early 1890s. It was fairly well understood as a result that more legislative clout was needed to deal with the plague and that to be effective it had to focus more upon the enforcement side. The clout came in the form of the Closed Houses and Insanitary Dwellings Ordinance in 1894. This legislation dealt resolutely with premises that had already been ordered closed by the Sanitary Board under the Public Health Ordinance but which often continued to be occupied given the lax enforcement.

Included in this legislation were many provisions which the government had, ill-advisedly, omitted from both the 1887 and 1889 ordinances as a result of strong opposition in the Legislative Council and strong opposition from property owners at the time as well. Looking back it can be seen clearly now that some viewed public health measures as an unnecessary expense at the time. One may of course find parallels for these sentiments today as well.

Public Health and Buildings Ordinance

For those who still had trouble seeing the link between health and soundly built and properly maintained buildings, the government made the link patently clear when it combined the two earlier laws that it has passed on buildings and public health into one law. That new law, aptly titled the Public Health and Buildings Ordinance, was passed exactly 100 years ago, in 1903. Sadly, given the situation today, the awareness that the government had temporarily shown with regard to this link between buildings and health was not to last. In 1935, as discussed below, it all but came to an end.

The 1903 legislation both consolidated and amended the earlier laws. It drew heavily upon the London Building Act of 1894 for inspiration. In particular, the provisions relating to the rights and liabilities of adjoining owners were taken mainly from Part VIII of the 1894 Act. However, Part III of the legislation, which dealt with buildings, was closer to the 1889 Buildings Ordinance. The 1903 legislation expanded its scope significantly and contained many more stringent rules affecting the construction of buildings. As in the past, many of the rules were responses to events occurring close in time. Around then in fact Hong Kong had just experienced a series of collapses during the previous year, 1902, as well. The result was to introduce a new standard for wall thickness that was borrowed from a law in force in Glasgow at that time. Apart from these though, certain other amendments gave further effect to recommendations that had appeared in Chadwick’s Report some years earlier as well. Central to the recommendations were amendments that provided for still better ventilation that was intended to safeguard public health as best could be done given the level of understanding at that time. No better illustration of the relationship of buildings to health in fact can be shown today than the adoption of these recommendations.

Jurisdictional Rivalries

In 1935, the Public Health and Buildings Ordinance was repealed and two Ordinances replaced it to control public health and buildings separately. The obvious question to ask is why?

The simple answer is that it was because of jurisdictional rivalries. At that time a report by the then Director of Medical and Sanitary Services said that provisions on design and construction of buildings, which belonged to the Public Works Department, should not be mixed with provisions on cleansing and prevention of disease. It was the Sanitary and Medical Department who was primarily responsible for these latter two areas. This telltale break saw some of the public health provisions moved to the new buildings legislation; however, a hiatus was also left. If one looks carefully at the gap that was created it is possible to surmise that it was really at this point that the link between public health and buildings was lost. It has of course had profound consequences of late with the SARS crisis and a host of new Hong Kong government initiatives, especially the Chief Secretary for Administration’s ‘Team Clean’ recommendations to re-establish the link. The effect of this separation has continued to the present day in Hong Kong.

At present, in Hong Kong, while the Buildings Ordinance still has some real public health provisions buried in its regulations, specifically the Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines, very few people ever think about them other than during construction. Once construction is complete, true supervision is left primarily to owners themselves and public officers under the Public Health and Municipal Services Ordinance. But, while those public officers have the power to inspect and repair a shopping list of sanitary conveniences, curiously these officers cannot touch the drains without permission from the Building Authority. It would seem that this oversight from another era could be overcome in a stroke by giving the power to the public officers unconditionally. Recent statements by the government in Hong Kong indicate that they are in fact now looking at this very issue and will likely take some steps to overcome these age-old jurisdictional rivalries.

Value and Buildings

While the link between health and buildings seems clear, as has been outlined here, there is still another link, which many flat owners in Hong Kong also seem to miss, that is, the failure of individuals, or so it would appear, to recognise how properly designing and maintaining buildings actually adds to their overall value.

It will be surprising to many that a very large number of buildings in Hong Kong do not have owners’ corporations; in fact, it is about 50,000 in total. Of this total, approximately 20% are more than 30 years old. In Hong Kong this is often a benchmark age in the life cycle of buildings which have been constructed there. One effect of the shortfall in owners’ corporations means that arranging for maintenance of these buildings is very difficult to achieve because there is neither the mechanism to call for nor the sanctions to enforce any decisions that might be taken pertaining to maintenance. This is not to say there is no legislation under which these arrangements could not be effected; rather the Building Management Ordinance was introduced to achieve precisely this as well as supplement the provisions that were found in deeds of mutual covenant and earlier repealed legislation; notably the Law of Property (Enforcement of Covenants) Ordinance. Thus, while the Building Management Ordinance clearly improves the management of multi-storey buildings and facilitates the incorporation of owners¹ it only covers a small number of buildings. In addition, in drafting the legislation some very rough compromises were struck between landlords’ and tenants’ rights which have otherwise limited the effectiveness of the legislation. Difficulties too have persisted because the legislation is too complicated for many owners to master and enable meetings to be properly called resulting in enforceable decisions being taken. The government has responded with some recent amendments to make calling meetings easier and this should help. So too of course would the government’s recent suggestion, given the SARS crisis, that it is seriously considering requiring an owner’s corporation for all buildings in Hong Kong. In this regard a consultation exercise has been announced to take place toward the end of the year in which the public will be invited to submit its views on how to address the problem of ageing buildings. Singapore may be able to provide a very useful model for Hong Kong to look at in this respect.

Many in the know have come to recognise that a wide range of benefits come from sound design and maintenance. They are, however, a distinct minority in Hong Kong. The rest see a much smaller picture; one in which the capital cost of flats or buildings is their only meaningful measure of financial value. Lately, recent research from the University of Hong Kong has confirmed that almost two-thirds of the total capital outlay for a high-rise building can be attributed to long-term life-cycle maintenance, renewal and demolition. This is new thinking. The flaw in the old thinking is that too much emphasis has always been placed upon the initial (versus the total) capital outlay in determining value. The old thinking is regrettably still too influential in determining how property in Hong Kong is valued. This is worth noting because if we did value property in another way then the current health scare might just not have taken hold as it has. Before saying how this might have been the case, some other measures for assigning buildings their true value may be outlined.

Thus, while capital cost is important in measuring financial value, so too should running, maintenance and operating costs be important and included among the measures of value for property. It may even be suggested that simply by adding these measures to the evaluation process we could provide incentives to property owners to better look after their property. This is not the full story though as there are other factors as well that should be taken into account. Thus, next on the list of additional factors that should be taken into account in calculating value is indoor environmental quality. This is made up of light, air and sound attributes. One can point to many illustrations of just how relevant these are especially if a problem has been experienced in the past which pertains to them. In these cases in particular one would likely want to place a very high value on the factor.

Lastly, the final factor that may be added to the others to arrive at a better, fuller appreciation of what value should comprise, is spatial quality. This brings in, among other things, configuration and structure. Brand names aside, putting all of these factors together would give us a very different formula for determining what is or is not valuable in our vast stock of realty. Then, it may be surmised, the market can decide the value.

In summary, what is needed today is a broader more holistic approach to how buildings are valued. It is an approach that adds new attributes to financial value, and brings in environmental and spatial quality factors as well. It will not be easy for those in Hong Kong to adopt these new types of measures for value. Nor will it be easy for them to fully appreciate the link between the buildings in which they live and work and the effect that they have, directly and indirectly, upon their health. But people in Hong Kong must, if they are to learn the lessons from the past. Surely 159 years after the first legislative link between buildings and public health was made in Hong Kong, it is about time.

Arthur McInnis
Clifford Chance Hong Kong
E-mail: [email protected]

Endnote