Property Ownership and Development Briefing Note

Graded Buildings and the Antiquities and Monuments Ordinance


In 1976 the Antiquities Advisory Board (AAB) was established with a view to preserve the archaeological and built heritage of Hong Kong and to promote awareness and appreciation of its cultural legacy.

Between 1996 to 2000, a territory wide survey of buildings (mainly built before 1950) was carried out with some 8,800 buildings being recorded.  It was not until 2009, that the AAB carried out a more in-depth assessment of 1,444 of those buildings, the result of which led to 955 buildings being catergorised as follows:

(a)     Grade 1 – Buildings of outstanding merit ‑ every effort should be made to preserve if possible;

(b)     Grade 2 – Buildings of special merit ‑ efforts should be made selectively to preserve; and

(c)     Grade 3 – Buildings of some merit ‑ preservation in some form would be desirable and alternative means could be considered if preservation is not practicable.

You can check if a building is graded by searching the list on the AAB Website (click here for the Graded Building List).

At the same time the AAB was established, the Antiquities and Monuments Ordinance (Cap. 53) (AMO) (click here) was enacted which essentially puts certain buildings and sites (which are referred to as monuments and proposed monuments) under statutory protection and prevents any works from being carried out to them unless a permit has been obtained from the Secretary for Development (Authority).

When considering whether to classify a building as a monument or a proposed monument under the AMO, the Authority may take into account whether a building is graded or not but it is not bound to do so.  There is no direct link between the grading system and the declaration process under the AMO and there is little correlation between the graded building list and the monuments list.

Key provisions of AMO

A monument is any place, building, site or structure which is declared a monument under the AMO. Similarly, a proposed monument is any place, building, site or structure which is declared a proposed monument under the AMO.

Section 2 of the AMO deals with the declaration process for proposed monuments.  Essentially the Authority consults with the AAB and issues a notice in the Gazette.  The notice is then registered against the title to the property.  The notice is valid for 12 months and can be extended (except where it relates to private land).  There is an objection and appeal process which requires an owner to make an application to the Authority.  A further appeal can then be made to the Chief Executive who can refer the matter to the Chief Executive in Council.  Declaring a proposed monument is the quickest way to protect a property and temporarily prevent any works from being carried out to it.

Section 3 of the AMO deals with the declaration process for monuments.  This is very similar to the declaration process for proposed monuments save that the Authority also needs to get the Chief Executive’s approval.  Again a notice is issued in the Gazette and registered against the title to the property.  The objection and appeal process largely follows that of the proposed monuments save that an objection should be first raised with the Chief Executive (and not the Authority) who can then refer it to Chief Executive in Council.

Following the declaration of a monument or proposed monument, the Authority can enter it to fence it off and excavate or search the premises for relics subject to the prior approval of the Chief Executive.  If the premises are residential the Authority would also need the consent of the owner and to give at least 24 hours’ notice.  An owner cannot be excluded from the premises.

The owner of a proposed monument or monument cannot carry out any excavation, building or other works, plant or fell any trees,  demolish, remove, obstruct, deface or interfere with the monument or proposed monument except with a permit granted by the AAB.

If a building is classified as a monument or proposed monument then it may be possible to apply for a grant in respect of any maintenance, preservation or restoration works. Compensation may also be available if financial loss is suffered as a result of the premises being classified a monument or proposed monument.  No such incentives apply to graded buildings.

Summary

There are currently 114 proposed monuments and monuments (click here for the current list).  The AMO only protects monuments and proposed monuments and not graded buildings.  Indeed, there have been several examples where a building or site (such as Ho Tung Garden and Queen’s Pier) has been classified as Grade 1 but demolished and redeveloped in the absence of statutory protection under the AMO.  The AAB gives non-statutory guidance that works to graded buildings are discouraged and makes a general recommendation that the Authority should be consulted before any works are carried out to a graded building but this is of obviously limited effect.  Our view is that the system needs a thorough overhaul to protect Hong Kong’s remaining heritage.

Property ownership and development advice forms one of the core elements of Cordells’ practice.  For full details of these services please see our website: cordells.com.hk
For further information, please contact Hilary Cordell
T 2810 7227
M 9432 8259
hilary.cordell@cordells.com.hk
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