Retaining a 1989 Cockloft After a Section 24 Order
A 1964 eight-storey composite building in Sham Shui Po has shops on the ground floor and domestic flats above. The owner of a first-floor flat engages an authorized person (AP) to renovate it. During the measured survey, the AP finds a 42 m² cockloft mezzanine built over the living room and kitchen, with a clear height of 2.2 m below and 1.9 m above, reached by a timber stair. There is also a 1.2 m deep reinforced concrete canopy projecting over the pavement. Neither structure appears on the approved plans held by the Buildings Department. Following a complaint, the Building Authority has issued an order under section 24 of the Buildings Ordinance requiring the owner to demolish or otherwise rectify the unauthorized building works. The owner tells the AP that the cockloft was built in 1989, has never caused a problem, and should be kept because it adds storage value. The owner also wants the canopy retained as shelter for the shop below.
1. Can the owner rely on the age of the cockloft to resist the section 24 order? Explain the legal and practical position.
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No. The Buildings Ordinance does not contain a general limitation period or amnesty that turns an unauthorized cockloft into lawful works merely because it is old. The section 24 order is addressed to the current owner and can be enforced notwithstanding the 1989 construction date. The owner's remedies are to comply, to submit a proposal that the Building Authority accepts as regularization, or to use the statutory appeal mechanism; age is not a defence. Practically, the Building Authority may prioritize dangerous unauthorized building works, but that is an enforcement policy, not a legal right to retain. The AP should check whether the 1989 works were ever approved or covered by an earlier order; if not, they remain unauthorized. The canopy over the pavement raises additional issues because it projects over government land and may require separate approval. The AP must not write to the client asserting that the cockloft is 'legalized by time'.
2. The owner instructs the AP to proceed with the renovation and 'sort out the order afterwards'. What should the AP advise and do?
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The AP should refuse to proceed on that instruction. Renovation of the flat is building works and requires approval and consent unless it falls within the minor works regime; proceeding while a section 24 order is outstanding risks compounding the unauthorized works, interfering with compliance, and creating new non-compliant work. The AP's duty is to advise the client in writing of the order, the risks of non-compliance, and the need to resolve the cockloft and canopy before or as part of the renovation. The AP should not submit plans that conceal the unauthorized works or certify completion of works that include them. If the client insists, the AP should consider declining to act further and should hand over records. The AP should not participate in a strategy to 'deal with it later'. The AP may also need to notify the Building Authority if the client or contractor starts works that are dangerous or contrary to the order.
3. If the owner wishes to retain the cockloft, outline the route and the key tests the proposal must satisfy.
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The route is to submit plans to the Building Authority for approval and obtain consent before works. The submission should include a registered structural engineer's assessment, because the cockloft and canopy affect structural load paths and connections. The AP must demonstrate compliance with the Building (Planning) Regulations on means of escape, fire resisting construction, lighting and ventilation, and with the Fire Safety (Buildings) Ordinance for the composite building. The proposal must show that the cockloft does not obstruct escape, does not breach a fire compartment, and does not overload the structure. The canopy needs structural justification and separate consideration of lease and land issues, pavement clearance, and drainage. The key tests are structural safety, fire safety, health and sanitation, and no adverse effect on common parts or other owners. If the cockloft cannot comply, the only lawful option is removal. The AP should obtain owners' corporation or co-owners' consent for works affecting common areas and should not treat regularization as a formality.