Comparative study on Legislative mechanism for Architectural Conservation
By Kin Hui
Abstract
Frameworks for legislation and regulations on built heritage differ geographically. This essay is to compare Scotland with the system in Hong Kong for their approach towards protection of historic buildings and heritage environment. For Scotland, Kilmahew estate is chosen for the study of this essay, and King Yin Lei (景賢里) in Hong Kong as the counterpart for comparison study.
Introduction
With the increasing awareness of the general public in recent years, it witnesses a growing trend of the communities demanding their local authorities to take good care of historical buildings and the environment in a sustainable manner. On the other hand, governments of many countries start to realize the potential value of heritage asset in terms of national identity and the well being of community. These prompt for the review of the existing frameworks in place for better protection. Within this context, a comparative study of legislation and regulations will throw light on the pros and cons for each system and provide for insight on the improvement.
Owing to the influence from Great Britain, both Scotland and Hong Kong share some similarities in their legislature. Scotland is part of the United Kingdom while Hong Kong was once the colony of the British Empire in the past. But due to particularities and differences in cultures, localities, and development, each of them has its own approach and way of implementation. This gives a good opportunity to examine and compare their mechanisms on the conservation of built heritage through legislation and regulations.
Origin for legislation of Scotland on Built Heritage and historic environment
The origin of legislation in Scotland on built heritage can be traced its root back in England when William Morris, the originator of Art and Craft Movement, established the Society for the Protection of Ancient Buildings (SPAB) in 1887. As a reaction to industrialization, they promoted the revivals of traditions with the procurement of local materials and technique. Stricture of SPAB for preservation was regarded as the very first promulgation on the protection of historic buildings. In 1882, the Ancient Monuments Protection Act was enacted which laid down the milestone for the legislation on built heritage. It was then followed by the Ancient Monuments Consolidation and Amendment Act in 1913.
The most crucial development took place in 1947 with formulation of the Town and Country Planning Act immediately after the Second World War. Under this act, it required for planning permission for new development. It also established a registration system of buildings of historical, architectural and cultural significance. They were given the status of listed buildings. In 1967, the Civic Amenities Act provided for the Conservation Area which extended the concept of protection from individual listed buildings to overall protection in terms of control area.
Framework of Scotland for protection of historic environment
Fig. 1 gives an overall framework in Scotland which shows the main body responsible for tasks of control being the Historic Environment Scotland (HES). HES were set up in 2015 under the Historic Environment Act for the implementation of heritage protection. It is the merge of two agencies, the Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS). As a statutory body, it is responsible for investigation, caring and promoting Scotland’s historic environment. As shown in the diagram, it has the direct decision making on scheduled monuments and listed buildings. For scheduled monuments of national significance, HES will determine their consent application; while for the listed buildings of lesser importance, HES will be consulted and the consent application will be handled by the local building authorities. HES also collect and manage records on Scotland’s historic environment which are published online for public use via the internet website ‘Canmore’. In Fig. 1, we can also identify local government for the role on decision making in concern with any work or development relating to conservation areas and local landscape areas. This delegation of power to local authorities will facilitate protection in good place. It also needs to note that on the national level, the Scottish government will publish the National Planning Framework (NPF) which provides for general guiding principles relating to historic environment to in line with changing needs of the society.
Related legislation and regulations in Scotland
The followings are the list of the major legislation and regulations in Scotland relating to historic environment:
The Planning (Listed Buildings and Conservation Areas) (Scotland) Act deals with matters regarding control of listed buildings and conservation areas in Scotland. Under Section 1, it states out the responsibility of HES to compile the list for buildings of historical and architectural interest. It is interesting to note that the concept of curtilage is introduced into the legislation. The preservation is extended to ‘man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building’ under Section 1(2)b.
For Scotland, listed buildings are categorized into A, B and C under the grading of national, regional and local importance respectively. The Act also gives power to HES for temporary listing on buildings which are yet to receive status so that immediate protection can be given to those unlisted buildings with interest under circumstances required. In section 5A, it provides for flexibility to allow for a grace period of 5 years for applicants who do not intend their premises for listing. This caters for interest of owners of premises not to be prejudiced by the legislation. A person may apply for appeal against decision of HES for listing under section 5B.
Section 6 is a crucial clause on restriction on works affecting listed buildings. It is quoted is follows:
‘Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.’
Section 9 set out for application on listed building consent to be submitted to the planning authorities concerned and the particulars required in the submission. In Section 9(6), it requires for the planning authorities to consult HES in processing the application. In Section 11, it gives the overriding power for Secretary of State to have consent application to be referred to him under circumstances required. Section 15 stipulates for conditions shall be imposed on granting listed building consent.
Section 54 is a clause regarding exception for ecclesiastical buildings. It provides for exemption from the legislation for ecclesiastical buildings which are at the time being used for ecclesiastical purposes. Section 55 spells out that the control on scheduled monuments shall be under Ancient Monuments and Archaeological Areas Act in lieu of this legislation.
While the Part I of legislation deals with the listed buildings, Part II is concerning conservation areas. Conservations areas can be buildings as well as the space between them that are of architectural and historic interest. Protection also covers trees and streetscapes that will constitute part of the character defining elements of an area. Section 63 stipulates that it shall be the duty of the planning authorities to publish proposal for the preservation and enhancement of any part of their districts which are conservation areas. Therefore, the public can retrieve online Conservation Areas Appraisal prepared by the local council. The appraisal defines the character and appearance of an area to facilitate full understanding on its preservation.
Kilmahew Estate in Scotland
Kilmahew Estate is located to the north of Cardross in the Council Argyll and Bute, Scotland. It covers about 140 acres of ancient woodland, comprising of St. Peter’s Seminary, Kilmahew Castle, a walled garden and a Japanese garden of Victorian era in picturesque setting. Under the current development plan, the estate is classified as green belt - garden and designated landscape [Appendix A].
St. Peter Seminary is a Category A listed building. Described by the international architectural conservation organization DOCOMOMO, it was a post war modernist complex in brutalist style with the status of world significance. The complex was also included on the ‘Buildings at Risk Register’ in 1990, and the World Monument Watchlist in 2008. The ‘Buildings at Risk Register’ were set up by HES during 1990 in response to growing numbers of listed buildings and buildings in conservation areas that were vacant and fallen into state of disrepair. Their information can be accessed online by the public freely. It becomes a helpful tool to track the regeneration of historical buildings over time. On the other hand, Kilmahew Castle is a castle ruin which was originally built as four-storey tower house in the 16th century. Some gothic modifications were introduced in the 19th century. It belongs to a scheduled ancient monument.
Kilmahew Education Trust was launched in 2020 to look after the estate. Realizing the potential of tangible and intangible value, the Trust has the vision to resurrect the estate through education. In an interview, the trust quoted the line from the famous Japanese architect, Tadao Ando, ‘I like ruin because what remains is not the total design, but clarity of thought, naked structure, spirit of things.’ [1] It endeavors to have the Kilmahew Estate ultimately to be listed as a world heritage site under UNESCO.
It is worth to note that various Trusts form part of the major framework for protection of historic environment in Scotland. To name a few, there are Glasgow City Heritage Trust, UK Association of Preservation Trust, and the National Trust, etc. They facilitate for conservation and restoration works, and raise funding for heritage projects.
Legislation on built heritage in Hong Kong
Being grown up in Hong Kong, I have witnessed how the changing political and economic climate shaped the scenes of heritage protection in Hong Kong. The first legislation on built heritage was formulated in the 1970s when Hong Kong was still a colony under the British rule. In 1976, the colonial government enacted the Antiquities and Monuments Ordinance [Appendix B] and established the Antiquities and Monuments Office (AMO) as a government department to implement its heritage policy. Unfortunately, it was at a time when the Britain was negotiating with the Mainland about the political future of Hong Kong. Joint Declaration was signed between Britain and China in 1983 to decide for the sovereignty of Hong Kong after 1997. The Governor of Hong Kong during that period was occupied with the overhaul of its political system to speed up democratization and to pave the way for general election after 1997. Amid bickering between Britian and China over the negotiating process, the colonial government during its last few decades had lost the sight on its heritage policy. Huge number of historic buildings was demolished for new development between 1980s and 1990s. The demolition included landmarks like the Kowloon-Canton Railway Station, the Hong Kong Club, the Murray House and the Central Post Office Building. The building boom in mid-level of Hong Kong Island during this period had almost wiped out historic buildings along Caine Road, Robinson Road and Conduit Road, and changed the streetscapes of Mid-level in their entirety. The incessant reclamation along waterfront altered the cherished coastline of the inner harbour. The massive destruction of historic buildings sparked outcry from the public, and heightened awareness of the general public towards heritage and its associated value.
After 1997, the new government of Hong Kong as the Special Administrative Region (SAR) of China changed its stance on conservation policy. The Chief Executive, who replaced the role of Governor, had his policy address in 1998 to state out the necessity to strengthen publicity of cultural heritage, and cultivation of sense of belonging and cultural identity. This allowed an opportunity for the Hong Kong government to re-examine its existing framework on heritage protection.
In 1998, the government implemented the Environmental Impact Assessment (EIA) Ordinance. For the planning of capital project, EIA was to cater for heritage impact assessment, and stakeholder had to consult AMO for advice on preservation of character defining elements of any affected built heritage. In 2004, public consultation was launched to seek public opinion on improvement on the framework of conservation policy. By 2007, Commissioner for Heritage’s Office (CHO) was established under the Development Bureau. Partnership was also introduced with the private sector for revitalizing of historic buildings. The government had different batches for revitalization scheme over the years to set its target on heritage protection.
Framework of Hong Kong for protection of built heritage
The Antiquities Advisory Board (AAB) is set up under the Antiquities and Monuments Ordinance. Its members are directly appointed by the Chief Executive. One of the main functions of AAB is to give recommendation to the Secretary of Development on item to be considered for declaration as monument or proposed monument. The Secretary of Development is the authority designated under the Antiquities and Monuments Ordinance to determine matters relating to monuments and antiquities. The Development Bureau is directly under the Secretary of Development. Besides AMO, the Development Bureau had the CHO to coordinate matters relating to heritage. AMO is the very department to compile the lists for historical buildings and declared monuments. It also handles conservation projects and to give technical advice on built heritage. It is interesting to note that historical buildings without the status of monuments are not protected under the Antiquities and Monuments Ordinance. Historical buildings are graded into three categories, namely I, II and III according to their varying degree of significance. The protection for those historical buildings, which do not to the category of monuments, is through administrative guideline rather than by the means of ordinance directly, as they receive no formal legal protection under the ordinance. For example, if there are works on a historical building from the private sector, it will be directly submitted to Buildings Department for approval under a centralized processing system. The Buildings Department will then circulate the submission to AMO for advice on heritage matters. The objective of centralized processing system is to streamline the submission procedure for the private sector. Decision on the submission will be made by Buildings Department instead of AMO in accordance with Buildings Ordinance. [Appendix B]
The Antiquities and Monuments Ordinance (Cap.53) in Hong Kong
The Antiquities and Monuments Ordinance is the sole legislation in Hong Kong relating to declared monuments and antiquities. The Secretary of Development is the authority as referred by the ordinance. Under Section 3(1), it stipulates as follows:
‘The Authority may, after consultation with the Board and with the approval of the Chief Executive, by notice in the Gazette, declare any place, building, site or structure, which the Authority considers to be of public interest by reason of its historical, archaeological or palaeontological significance, to be a monument, historical building or archaeological or palaeontological site or structure.’
Under Section 6(1), it calls out as below:
‘no person shall (a) excavate, carry on building or other works, plant or fell trees or deposit earth or refuse on or in a proposed monument or monument; or
(b) demolish, remove, obstruct, deface or interfere with a proposed monument or monument’
Then at Section 6(4), ‘The Authority may, after consultation with the Board and with the approval of the Chief Executive, by notice in the Gazette, declare any proposed monument or monument to be exempt from this section.’
Any person who contravenes Section 6(1) will be subjected to fine and imprisonment as stipulated under Section 19(2).
King Yin Lei (景賢里) as declared monument in Hong Kong
King Yin Lei is a mansion in the mid-level of Hong Kong Island, built in Chinese Renaissance style during 1930s. Having featured prominently in several renowned international film productions and in the popular TV dramas locally, its beauty embeds vividly in the memory of Hong Kong people. The mansion was declared as monument by the Hong Kong government in 2008 for reasons of its architectural, historical and cultural significance. The garden adjoining King Yin Lei also achieved the same status of declared monument.
The story on how the King Yin Lei became a declared monument had highlighted the precarious situations of historical buildings in Hong Kong. It unfolded in 2004 when the property was offered for sale. Despite claims in the public that the new developer would likely to demolish the building for redevelopment, the government did not take any action during that time. It was not until when the new developer had its contractor starting demolition works in 2007 that sparked the outcry from the public and drew widespread attention of the press, the government eventually then stepped in. The Secretary of Development, after consulting AAB and the Chief Executive, declared the King Yin Lei as a proposed monument to buy time for negotiation with the developer. By 2008, the deal was finally made between the government and the developer for land exchange so that the government could take over the ownership of the premises. Conservation for King Yin Lei was undertaken by AMO from 2008 to 2010. It was reported in the press that the cost of restoration was estimated at least HK$ 50 million though the official figure was not revealed [2]. It is currently under the batch VI of revitalization scheme to draw proposal from the private sector on how to make full use of the venue for the interest of public.
Pros and cons – a critical analysis
The protection of historic environment can be seen as allegory in architectural terms of ‘Point, Line and Plane’ (點，線，面). ‘Point’ refers to individual historical buildings or monuments, ‘Line’ as streetscapes and ‘Plane’ for conservation areas. From the earlier explanation for legislation and regulations in this essay, we can identify different levels of ‘Point, Line and Plane’ in the case for Scotland. The development of system and implementation in Scotland set a good example for protection of historic environment in this regard.
But there are still some drawbacks in Scotland. The complexity in legislation and regulations will pose a great difficulty for practitioners. Supplementary legislation comes with separate act instead of renewing the existing one. New comer in the field will need more time and great deal of hand-on experience in order to grasp the full picture of their system. On the matter relating to funding for heritage projects, Scottish government lacks the initiative, and their performance in this aspect falls significantly behind the anticipation of public. It always takes a huge amount of time for obtaining grant to finance conservation works in the private sector. For the case St. Peter Seminary, we recorded that conservation assessment prepared by Avanti Architects was available back in 2008, but the listed complex is still in the state of ruin and disrepair these days. The Kilmahew Education Trust was launched to look after the estate in 2020. It is only out of the good will of a handful of dedicated personnel to take up the cause and to save the complex from further deterioration. Up to now, the government seems to show no active support to their effort and work.
Though it happened before the set up of HES, one may also question the tear down of old buildings during the 60s and 70s in Glasgow, the largest and most populated city in Scotland. Should the degeneration of old district have to be remedied by wholesale demolition? Large stretch of masonry tenements built during the Victorian era was subjected to the fate of clearance during that period, and became obliterated from the map. Misbelief in the modern concept of high rise by the authority caused unprecedented displacement. Nowadays, when we look back, the regeneration of dilapidated areas could have been handled in a delicate manner without involving damaging effects to the existing fabric of the city.
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For Hong Kong, we can only find protection of heritage that mainly focuses on individual built heritage. It still remains on the dimension of ‘Point’. Old districts like Sheung Wan, Sham Shui Po and Yau Ma Tei are all in great danger of destruction due to rampant new development by the greedy developers. The system needs re-examining urgently to extend protection to streetscapes and pockets of district. Otherwise, it will lose the very characters that epitomize the lovely old Hong Kong in the true eyes of its own people and the world.
Another problem in the development of system in Hong Kong lies with the fundamental structure of government. After its handover to China, the sluggish democratization and the curbed progress towards general election hinder greatly the formation of a representative government. Members of AAB are all appointed by the Chief Executive. Therefore, the outlook of board greatly depends on who will become the next Chief Executive. As long as the Chief Executive not being chosen by general election, there won’t be a chance the AAB will genuinely represent the interest of its people. We can clearly see the growing divergence of viewpoints between the board and the general public. In recent years, conflicts that took place in the demolition of Star Ferry Pier, and the Queen Pier in Central District reflected the underlying problem of the system. Another example was the temporary housing site near Tsui Sing Lau Pagoda (聚星樓) of Ping Shan Heritage Trail (屏山文物徑). The local villagers expressed their view against the proposal for feng shui reason. After the approval by the Town Planning Board on designation of the site for temporary housing purpose, the villagers staged their strong opposition by closing down all the venues, including the Tang Ancestral Hall (鄧氏宗祠), Yu Kiu Ancestral Hall (愈喬二公祠) and the Kun Ting Study Hall (覲廷書室) in Ping Shan along the heritage trail. The issue is still now pending for resolve between the villagers and the government at the time of writing this essay.
On the other hand, the administrative guideline in place for the protection of historic buildings does not always work perfectly for Hong Kong. For Ho Tung Gardens (何東花園), the SAR government was caught in the dilemma of either protecting the development rights of private or to save the grade I historic complex. To save the mansion, the Secretary of Development tried the same strategy of proposed monument in order to liaise with the owner for land exchange in 2010. But due to unwillingness of the owner to preserve the complex, demolition was to go ahead against the wishes of the government and the public eventually.
The revitalization scheme on historical buildings initiated by the Development Bureau is one successful example in Hong Kong. It sets out for active participation by the government in partnership with the private sector for adaptive reuse on those historical buildings owned by the government. One-off grant from the government will be available for the private sector to facilitate conservation and the related conversion works. The chosen applicant is then expected to run the venue out of its own resources afterwards. The revitalization scheme aims for adaptive re-use of historical buildings in a sustainable manner.
Conclusion
From this essay, we can identify similarities and differences for the system and the course of development in Scotland and Hong Kong. The case studies of Kilmahew estate and King Yin Lei highlighted the challenge facing the authorities. To overcome the difficulties, one needs to carefully balance the pros and cons, and to re-examine their framework in light of good comparative study. Shall the revitalization scheme which was successfully practiced in Hong Kong to be applied in Scotland? Shall Hong Kong to be less executive lead to include more genuine public participation in heritage protection? Historical buildings in Hong Kong that are not monuments to be considered for protection under the Ordinance? Shall the legislature in Scotland to be more streamlined to enable new practitioners to understand and comprehend in an easier format? Definitely more questions down the line if one holds an inquisitive mind. In all, it has to remember and always to bear in mind the motto, ‘Our Place in Time’, in fighting for the cause of historic environment protection.
The end of Essay
Appendix A – Development Plan for Helensburgh, the Council of Argyll and Bute in Glasgow
Appendix B – Practice Notes for Conservation of Historic Buildings in Hong Kong
