Land Planning, Property Rights and Management of Built Heritage: Some Hong Kong Observations of Colonial Military Buildings

Abstract

There has been much confusion in property rights inquiry into real (immovable) property (i.e., land) between open access and common property, and between public property and common property because that is often also open access. This paper argues that the property rights and access control are two distinct dimensions of land resource management. Access control involves the exercise of exclusionary power relevant to the management of the immovable property (property management) for its optimal use. A review of the literature shows that definitions of property management tend to be too narrow but point towards the need to articulate issues within the property rights paradigm. As a contribution to sustainable resource use as a dimension of land planning, this paper points out and discusses the probable sources of the confusion between land property rights and property management. A “Land Property Rights and Management Matrix” (LPRMM) is developed as a theoretical tool for clarifying the confusion and the relationships amongst relevant concepts. The LPRMM is theoretically informed by Barzel’s not entirely correct distinction between legal (de jure) and economic (de facto) rights and enriched by relevant literature on property rights and property management. Practical use of the LPRMM is illustrated by its application to analyze the issues pertaining to the actual resource-use phenomena in colonial military buildings erected on both private and public land in Hong Kong. The results show that heritage buildings on land under public ownership as private property can be neglected or intensively managed. The LPRMM is not only a useful theoretical tool for precisely assessing the actual affairs of resource use but also a practical tool for identifying issues of property management in its widest sense. The LPRMM offered is a proper interpretation of Barzel’s distinction between legal and economic rights and contributes to systematically re-interpreting property management as town planning writ large in terms of de jure property rights and de facto access.

1. Preamble: Management of Colonial Military Built Heritage in Hong Kong

Heritage conservation is an important part of the UN 2030 Agenda for Sustainable Development. Target 11.4, Indicator 11.4.1 of Goal 11 of the UN Sustainable Development Goals (SDGs) of the Agenda seeks to “strengthen efforts to protect and safeguard the world’s cultural & natural heritage”. As such heritage as resources for the common good often involves buildings subject to town planning, there is need to see how land planning can best protect and safeguard such resources by proper access management essential for enable investment. This Hong Kong case study informed by property rights concepts sheds light on the proper directions of strengthening institutional efforts to conserve a special form of cultural heritage associated with past wars.

There is a rich stock of military built heritage in Hong Kong, which has survived eighty or more years of neglect. It is a congeries of forts, coastal defence gun batteries, anti-aircraft (AA) gun batteries, pillboxes, fixed observation posts, shelters, and the like all built of reinforced concrete and most, though not all, of 1930s vintage. Most of these are on government land. As potential recreational, tourism and educational resources, they could testify to the upheavals and changes in Hong Kong’s international and local economic and political relationships.

Contrary to intuition in a post-colonial Chinese political cultural setting, the statutory heritage grading body of Hong Kong, the Antiquities Advisory Board (AAB), has not obviously discriminated against colonial military built heritage by exclusion or downgrading [1] (Chau et al. 2022). However, few of the military sites or buildings that have been graded, not to mention that majority not included in a much-cited AAB list, have been properly managed. The AAB’s decisions about grading are based on the architectural value of each site as assessed by experts who rarely used the concept of Total Economic Value (TEV) [2] (Wright and Eppink 2016).

This is a contribution to sustainable resource use, as a dimension of property management writ large, i.e., land planning meaning regional, town, urban, country or rural planning (which for simplicity is hereinafter referred to as town planning), in terms of built heritage conservation. It seeks to develop and apply a “Land Property Rights and Management Matrix” (LPRMM) for property management writ large as sustainable resource management, both in strategic articulation [3,4] (Bennett et al. 2010, Milka 2018) and front-line execution [5] (Meadows 2014) of land use policy. It does so informed by theoretical concepts, in a way intended to make practically useful, general observations for conservation of built heritage assets in Hong Kong and elsewhere.

The use of matrices as tools to demonstrate ideas and findings are very common in both property management [6] (Yung et al. 2016) and heritage management research (see for instance [7] Du Cros (2001), [8] Bucurescu (2015), [9] Yung et al. (2013) and [10] Hribar et al. (2015)).

Section 2 of this paper will discuss the definitions of property management and property rights. Section 3 reviews the literature on property rights and points out some problems of applying a property rights concept to property management in a wide sense. Section 4 develops a Land Property Rights and Management Matrix (LPRMM) which has one dimension of de jure rights and another of de facto access control. Section 5 applies the LPRMM to analyze eight examples of colonial military built heritage on land owned by private bodies and by government under various management scenarios according to the LPRMM. Section 6 discusses the property management implications of the eight examples for both policy makers and practitioners. Section 7 concludes the whole paper and suggests a few directions for further and better studies.

2. Literature Review: Definitions of Property Management and Property Rights

While property management and property rights are part and parcel of everyday life as regards the built environment, their definitions are elusive, especially when the two concepts are put together.

2.1. Property Management in Research Literature

In the literature, there are not many written definitions of, not to mention little debate about, what exactly property management means or is about, except that it is always about immovable property or land (for the rest of the paper, land and immovable properties are used interchangeably) as opposed to other types of resources. Some therefore have sought to adopt a working definition to fit their research, as in the case of the conference paper by [11] Armitage and Brown (2007). “While it is acknowledged that there is no universally accepted definition of ‘property management’, it will be assumed for the purpose of this paper that the definition provided in the reader is accurate. That definition is maximising the initial and long-term benefits from the capital invested in property assets [11] (Armitage and Brown 2007:para. 1.4)”. The work of [12] (Pan and Kung 2019) compiles a table of definitions, mainly based on Asian sources, but does not discuss them.

After a review of the literature, it is safe to say that there are basically two types of definition. The first type focuses on buildings. According to Baldwin’s (1994) work [12], cited 26 times according to a Google search:

“Property management can be defined as the total care of the building.”

([13] (Baldwin 1994, p. 18), as cited by [14] (Li 2010)), underline authors.

This focus is on the building, a form of real property, as is also mentioned in [15] (Salleh et al. 2008):

“According to Narains Corporation (1971) a famous property consultant and realtor in India, property management can be defined as the function of looking after buildings. These functions comprise of (sic) rental collection, payment, building maintenance, services condition,….”

(Salleh et al. 2008: 37, authors’ underlining)

With hindsight, this focus on the building lends itself to the development of facility management as a science of dealing with the design and use of facilities within building projects.

The second type focuses, if with a fair amount of conceptual muddle, on proprietary interests, as found in [16] (Noor and Pitt 2010); [17] (Nah et al. 2012) and [18] (Mohamad et al. 2016):

“property management means the management and control of any land, building and any interest therein, excluding the management of property-based businesses. (Property-based businesses include; a hotel, motel, hostel, plantation, quarry, marina, port, golf course, cinema, stadium, sports complex and hospital)”

([16] (Noor and Pitt 2010), authors’ underlining)

“In general, property management can be defined as a control or monitoring activity over property interests while considering the owner’s ascertained objectives.”

([19] (Scarret, 1983); [17] (Nah et al. 2012), authors’ underlining)

“Property management can be defined as an activity which seeks to control interests in property taking into consideration the short- and long-term objectives of the property owner and particularly the purpose for which the property is held.”

([18] (Mohamad et al. 2016), authors’ underlining)

This type of definition as part of land use policy is more general and in principle should articulate with property rights economics as knowledge relevant to understanding property management. In a practical but narrow legal sense it can be said that property management and property rights are common in that they both about property; and one cannot manage any property, in the absence of any right validly conferred or duty imposed. So, by derivation one may say that property management is at some level a manifestation of extant property rights: if there is no proprietary right in X, there is no entitlement for anyone to manage X.

2.2. Property Management Broadly Defined as a Major Dimension of Town Planning

However, property management is just a static statement of the active engagement of managing property, and active engagement of managing necessarily entails what right one has to manage in this way or that. In short, it necessarily raises the question of how alternative property rights regimes may facilitate or hinder the manner of managing. In short, property management is intimately connected to property rights economics.

To set the scene for discussion, the working definition of property management used in this paper is the management of Land as physical property, both real and personal, as more fully elaborated in the web definition cited below. Such management in a general sense is town planning that defines the boundaries of such land as properties [19,20,21,22,23] and this has a strong bearing on sustainable development. At the same time, the working definition of property rights adopted in this paper is of socially agreed, legitimate and enforceable rules governing (i.e., concerning the governance of) access to, as well as the use and transfer of, a resource or property.

A broad definition of property management is useful since it allows for various approaches within the industry. Consider the following edited web definition:

“Property management is the operation, control, and oversight of real estate as used in its most broad terms. Management indicates a need [for whatever is being managed] to be cared for, [to be] monitored and [to be given] account for [by the managers during] its useful life and condition. Akin [, therefore,] to the role of management in any business. Property management is also the management of [the] personal property, equipment, tooling and physical capital assets that are acquired and used to build, repair and maintain end item deliverables. Property management [thus] involves the processes, systems, [human resources and materiel] required to manage the life cycle of all acquired property as defined above including acquisition, control, accountability, responsibility, maintenance, utilization and disposition. 1 [Underlining, brackets and deletion authors’].”

This understanding of property management is still too restrictive as it as it does not see it as global, regional, town or country resource management that creates, allocates and regulates real properties—in other words, town planning in its fundamental sense [19,20,21,22].

In this paper, the subject matter of property management as town planning is military built heritage as a legacy of colonial period Hong Kong. Conserving such heritage is a form of sustainable resource use. In terms of local significance from these architectural leftovers, understood as heritage and interpreted through knowledge transmitted by survivors, official records and published research, one may be able to reconstruct the past but only partially and never fully. That way we gain present and future appreciation of what the past has to say to us, as it speaks through its relics.

2.3. Property Rights Defined

According to an interpretation by [24] (Lai 1997) of the ideas of [25] (Alchian 1965), [26] (Alchian and Demsetz 1973), and [27] (Cheung 1991), there are three property rights regimes recognised by the law and/or tradition: one non-restrictive (non-exclusive) and two restrictive (exclusive). The non-exclusive regime, called common property rights, allows open access to everyone and no one is socially or legally constrained from obtaining any given resource within that property. The two non-exclusive regimes are communal property rights and (what are usually called) private property rights, though there is a need to stress here the definition of ‘private’ as belonging to, concerning, or accessible to only a single legal person. 2 This may seem pedantic, but as to be explained, in order for the state to ‘own’ public land as ‘private property’, there is a need to understand ‘private’ in an extensive way. Both regimes allow the holders of the rights to exclude non-holders of the rights. The former can collectively and rightfully regulate access to a property resource to the members of a specific community (say, a tribe) within which there are or may be rules for allocating it to sub-groups or individuals. The latter, private property rights (understood as above) allow their owner or holder three sets of positive and negative rights exclusive to the single legal owner or holder according to [28] (Cheung 1974) as interpreted by [29] (Lai 2014): (a) to use/not to use the resource/property; (b) to derive/not derive income from the resource/property; and (c) to alienate/not alienate the resource/property.

The stress on negative rights, which underlines charity and custodianship as human values, subscribes to the value that property rights are not ends in themselves but social means for the wider and collective human collective interest. They are not just for serving an autarkic individualist interest of exclusion, which in any case is economically only meaningful to enable a gain from trade by a spatial division of labour; they are also for any private person or entity’s responsibility for neighbours and the wider environment. That is, one’s property right is ALWAYS trammelled by one’s responsibility to both humanity in general and, by extension, to the health of the environment on which humanity depends (leaving out of the equation, for now, one’s larger responsibility to other sentient creatures).

3. Methodological Statement: Some Problems in the Application of Property Rights Concepts to Property Management: A Review of the Literature

Before applying property rights concepts to the management of military built heritage property there is a need to sort out some confusion in property rights economics, which is largely a result of incremental thinking by their intellectual fathers, notably those based in UCLA, namely Armen Alchian (1914–2013), Harold Demsetz (1930–2019) and Stephen N.S. Cheung (1935–) and their followers.

The major issue is the confusion between rights as de jure rules governing social conduct and the de facto exercise/enjoyment of them by holders of these rights (collectively or individually) vis-à-vis the rest of the world. This issue is both theoretically and practically critical for the management of built heritage due to the conflation of common property with a consequent, though not inevitable, tragedy of the commons [30] (Hardin 1968). A tacit supposition that the first entails the second underlies many discussions in heritage literature (such as [31] (Briassoulis 2002), [32] (Pintassilgo and Silva 2007), [33] (Bimonte 2008), [34] (Marsh 2012)). Clarity with respect to de jure rules and de facto conduct is thus essential.

Using unregulated fisheries and animal grazing as examples, the famous known and cited work by [30] (Hardin 1968) describes over-depletion of resources in the absence of access restrictions as tragedies. It is true that usually open access resources are resources under de jure common property. Equally, however, open access can apply to communal or exclusive ownership property that is not actively managed and could, accordingly, be at risk of abuse and what one might style a consequent tragedy of open access. The simple point is that open access does not necessarily entail de facto abuse. Resources recognised as common property can be ring fenced against social norms recognised by law; and resources under exclusive (communal and exclusive ownership) property rights can be open access due to neglect, failure to exclude, or a voluntary exercise of rights to generously grant free licence to all visitors [35] (Lai and Ho 2016).

Consider [27] (Cheung’s 1971: 83) exposition of common vs. private property rights, which is probably the best with respect to exclusive personal ownership property, in focusing our attention on characteristics inherent in the property itself:

“In a private property, the delimitation of the right to its use is expressed in dimensions or characteristics inherent in the property itself.”

According to Cheung, the contrast here is that common and communal property rights, unlike with exclusive personal ownership property, are not predicated on the inherent characteristics of the resource or property. He then distinguishes between communal and common property, and treats the communal arrangement as a matter of resource use based on hierarchical order, as in a firm or a commune. He concludes that to be better than common property as it constrains rent dissipation:

“In a common property, there is no delimitation or delineation of its use rights to any private party. No one has the right to exclude others from using it, and all are free to compete for its use.”

In short, for Cheung there is an implicit scaling of degrees of ordering of use rights. In common property there is no order to use rights—it is, as one says colloquially, a free for all. In communal property, there is a socially determined order—because of the way our community is structured, who gets to do what and when with our communal property is given. In exclusive personal ownership property, there is a tightly and singly defined enjoyer of the rights—this is mine and I alone use it or do not use it.

At this junction, there is a need point out that there are great difficulties for researchers new to the economics of property rights as they must trace the definitions to different authorities, who tend not to cross reference scholars holding different views. There are two main branches of definitions. The older branch is the UCLA school of thought stemming from [25] (Alchian 1965) and elaborated by [27] (Cheung 1991). As noted above, this offers a tripartite classification of property rights regimes into common property–communal property–private property. The first is non-exclusive and the other two are not non-exclusive.

The younger is that attributed to the work of [36] (Ciriacy-Wantrup and Bishop 1975), often with [37] (Bromley 1978), which points out (without engaging [25] (Alchian 1965) or his followers) that what has been called common property is historically institutionally governed. It criticises the use of the term common property (Label A) to refer to the situation, everybody’s property is nobody’s property (state of affairs X). The reason is that X was at odds with the long-standing meaning of the concept, sometimes to the point of being self-contradictory. In short, Label A should be reserved for its original historical meaning:

“The term common property as employed here refers to a distribution of property rights in resources in which a number of owners are co-equal in their rights to use the resource [36] (Ciriacy-Wantrup and Bishop 1975: 714).”

The problem is that [36] (Ciriacy-Wantrup and Bishop 1975) do not say what one should call X. Later, X became identified with open access as a distinct property rights regime, leading to the confusion of this system with open access permitted, tolerated or out of control by communal and private property owners of land.

An author [38] (Swaney 1990), followed by some others for instance [39] (Brinkhurst 2010), points out that common property is not the same as open access property, but this is not what open is pointed out as meaning in this paper. In terms of the old definitions of Alchian and Cheung, [38] (Swaney 1990) is treating open access as what Alchian described as common property while his common property, is what [26] (Cheung 1991) describes as communal property.

“Common property (res communes) means a group of owners or users share use rights to the resource. Common property is characterized by restrictions on who uses the resource, and when and how.”

(Swaney 1990)

Defining open access (res nullius) as resources that can be exploited by anyone without limit, he confuses recognised rights with de facto access. Like [40] (Quiggin 1988) in the vein of [36] (Ciriacy-Wantrup and Bishop 1975), [38] (Swaney 1990) treats the open field system of Europe as being common.

Like [41] (Hayek 1960), [25] (Alchian 1965) and [25] (Alchian and Demsetz 1973), Cheung’s articulation does not distinguish de jure rights from de facto access. Hayek conflated access and types of property rights or ownership in connection with conservation in his treatise, The Constitution of Liberty [41,42] (Hayek 1960: 368, Lai 1999), a confusion shared by [25] (Alchian 1965: 821–823). Both Hayek and Alchian focussed on the distinction between private ownership and public ownership in pointing out the greater incentive for the private owner to use the resource of property in the most value-enhancing way. The latter’s [25] (Alchian’s 1965) work points out this fact:

“The differences between public and private ownership arise from the inability of a public owner to sell his share of public ownership (and the ability to acquire a share without a purchase of the right). [25] (Alchian 1964: 821–823).”

Then, [26] (Alchian and Demsetz 1973) equated public or state ownership, to add to the muddle, with communal ownership.

“Often communal ownership is technically associated with state ownership, as in the case of public parks, wherein the state technically has the capability of excluding persons from using its property. If this right is exercised by the state frequently, as it is on military reservations, then the property right is more properly identified as state owned, but if the right to exclude is seldom exercised by the state, as in public parks or thoroughfares, then as a practical matter the users of the resource will treat it as communal. Communal rights mean that the working arrangement for the use of a resource is such that neither the state nor individual citizens can exclude others from using the resource except by prior and continuing use of the resource.”

Government or public land property is at law the exclusive ownership property of government or the state, though in modern societies this entails government, or the state, being understood as in some sense the agent of the people who constitute the public whose land is at issue. Another way of seeing that is that the legal regime that the properly constituted state and that state alone upholds and secures is what, in an important sense, establishes property of every sort. Absent a legal regime, absent property. Thus, that public land is open access or allowed to be used by non-governmentally employed members of the public without charge or regulation does not render it non-exclusively owned, in the sense entailed here, for otherwise the common law concepts of theft, criminal damage or doctrine of adverse possession would not be applicable to such land or its fixtures. In the case of public property to which access is open, that the law is not enforced does not alter the integrity of the rights structure. For the state, in this sense like a private firm, though to be understood as acting as the public’s agent—i.e., in the public interest—often can alienate public land by sale and/or grant.

In any case, widening our view here a resource that is de jure common property can become de facto communal or private property if enclosure by a community or individuals restricts physical access. In the other direction, a resource that is de jure communal or private property, if its owner so chooses, or allows, or cannot or does not care, can become de facto open access.

The distinction of [43] (Barzel 2015) between de jure legal and de facto economic rights is another source of confusion in the field of property rights economics. In the form of a dichotomy, not a matrix, it does not help clarify, but rather adds more confusion. One the one hand, one wonders if there are such things as legal rights that have no economic value. One the other hand, one wonders if de facto rights, as ‘rights’ that are somehow unrecognised by custom, agreement or law, can possibly exist. In short, the idea of a de facto enjoyment being a right is a category confusion. That no one tells me I must cease from doing X does not entail I have a right to do X, solely that I have no manifest duty to cease. In the terms of Hohfeld’s famous matrices of jural opposites and correlatives what I have in a context of de facto open access, is a privilege [44] (Hohfeld 1946).

One way to recuse Barzel’s ideas is to see economic rights as a subset of legal rights, having discounted the transaction costs [45] (Coase 1960) of measuring and enforcing the legal rights. A better way is to reinterpret Barzel’s ideas as a distinction along two dimensions, namely de jure rights (legitimate and commonly accepted rules on access) and de facto access control (legitimate and commonly accepted rules on control of access) to the resource or property subject to respective types of rights named by Alchian etc.

Rights entail greater authority than power or might. As de jure rights, which must be distinguished from de facto power, property rights are social rules that are seen and accepted by the majority of the people as legitimate and should be observed (even by the transgressors). Formal sanction by effective authority is only a last resort in any civilized community.

4. Recommendation: Land Property Rights and Management Matrix (LPRMM)

According to the discussion in the previous section, a 3 by 4 Land Property Rights and Management Matrix (LPRMM) is developed to operationalize the concepts relevant to the property rights and management of immovable property and presented in

Table 1. Land property rights and management matrix (LPRMM).

De facto access control		Property Rights Regime
		Non-exclusive	Exclusive
		Common property	Communal property (exclusive vs. outsiders)	Private property (Exclusive against rest of the world)
No physical entry barrier	Open and unmanaged	1 Ocean outside any maritime zones	2 Abandoned vacant communal land	3 Abandoned vacant property; unpatrolled public property
	Open and managed	4 Ocean under maritime zoning	5 Communal land actively used	6 Property taken care of by volunteers, visitors, squatters
Presence of physical entry barriers	Restricted but unmanaged	7 Abandoned pirate fortification on land not under any jurisdiction (?)	8 Abandoned vacant communal land	9 Gated facility neglected or abandoned
	Restricted and managed	10 Pirate fortification on land not under any jurisdiction	11 Fenced off communal land actively used	12 Gated development (with a property manager)

with an example for each of the 12 scenarios, numbered 1 to 12 [46]. Stroup (2005) merges the two concepts of open access and common property into the composite concept of open access common property but does not consider the logical and actual possibility of open access private property. The LPRMM presents all possibilities and is therefore applicable to all immovable properties.

De jure rights (things invisible) are classified as common, communal and private. De facto access control (or economic control) is classified according to the absence or presence of physical entry barriers (things visible), whether managed or unmanaged.

The LPRMM articulates well with property management science and practice. De jure rights are matters of governance. Physical barriers, as the key tools of access management, are the bread of butter of property managers.

Scenarios 1 to 6 are those in the absence of physical barriers, while Scenarios 7 to 12 are those which have one or other kind of physical barrier to access. These barriers can be fences, walls, bollards, and ditches, or even signs, lines on the road, etc., which are erected to define and protect boundaries of a land property from unwanted or unentitled entrants.

The classic Scenario 1 is the open ocean, also known as the high seas, outside any maritime zones, a domain in which unconstrained rent dissipation of the ocean and its resources is sadly ongoing. Unmanaged and perhaps unmanageable till there is a fundamental change in global and individual mind-set in favour of treasuring the common ocean as vital for human existence. It is the setting for Hardin’s tragedy of the commons. Property management here is limited to theoretical discussion and monitoring, although modern tools are perhaps changing this, as one can see with Global Fishing Watch (https://globalfishingwatch.org/, accessed on 31 July 2022).

Vacant communal land unmanaged by anyone is Scenario 2, which would be typical of abandoned indigenous villages or tribal settlements where any such exist. One day perhaps, the original inhabitants or their descendants and other stakeholders may reclaim or given back some exclusive rights to such land. It follows that in terms of conservation planning and management, they should be demarcated.

Abandoned or vacant property, or unpatrolled and unrestricted government property, is a typical Scenario 3 example. In the case of unpatrolled and unrestricted national parks, for example, any significant increase in the numbers of visitors means such property is susceptible to ecological stress and human damage.

Ocean areas under maritime zoning is a typical Scenario 4 example. The idea is simple in theory but hard in practice [47] (Davies 2006). Patrols by coastguards can ensure a degree of access restriction, and these days such things as obligatory, sealed voyage recorders and the Automatic Identification System (AIS) can enhance official ability to monitor and control.

Communal land actively used, as in the case of a native reserve (particularly if further protected by government), is a typical Scenario 5 example [48] (Doolittle 2001).

Scenario 6 is the case of neglected property of an absentee private owner where that property is being taken care of by government, volunteers, or squatters; or of neglected government property being taken care of by volunteers or squatters. Further discussion on this phenomenon of interest to property managers will be made in the next section.

Scenarios 7 to 9 are logical possibilities, but real life examples are not easy to find. An abandoned pirate fortification on land not under any jurisdiction (for example a hitherto unclaimed, mid-ocean island) is a possible theoretical example of Scenario 7. 3 Abandoned vacant communal land with entry barriers is an example of Scenario 8. Such barriers are token given the growth in economic interest in the land by strangers. Neglected or abandoned heavily gated private facilities, like prisons, would be examples of Scenario 9. Had the seized Maunsell Forts been at the time within British territorial waters, these would have been examples as, perhaps, the still extant Principality of Sealand remains (https://sealandgov.org/, accessed on 31 July 2022).

Pirate fortifications on land not under any jurisdiction is an example of Scenario 10. There were some examples in the 17th century Caribbean. Here again, the Principality of Sealand may be a contemporary example. Scenarios 11 and 12 are typical property management examples. The former is for communal land and the latter private property. They typically have professional property managers to deal with access management.

Based on the LPRMM, one can move on to discuss the physical state of affairs of colonial military built heritage in Hong Kong. The discussion will be limited to buildings on land under exclusive private ownership.

5. Examples of Property Management of Colonial Military Buildings in Hong Kong

In

Table 2. Examples of Hong Kong colonial military heritage buildings under alternative access control modes under private property rights.

De facto access control		Private Property Rights Regime
		Private land (leasehold, licence)	Public (government/state) land
No physical entry barrier	Open and unmanaged	(A) PB14, Ocean Park, now occupied by a squatter	(B) Pottinger Battery;
	Open and managed	(C) Gun Emplacement No 2, Jubilee Battery, University of Chicago Hong Kong	(D) Pillbox 313 of Gin Drinker’s Line near Fools’ Paradise, Golden Hill Country Park
Presence of entry barrier	Restricted but unmanaged	(E) Pillbox in Chiu Yuen (Eurasian) Cemetery	(F) Bokhara Battery, Cape D’Aguilar
	Restricted and managed	(G) Tai O Heritage Hotel	(H) Hong Kong Museum of Coast Defence

are selected examples of colonial military buildings that are on the property of private owners or of government. Differentiating private from public land, the table has eight cells (A to H) vertically differentiated as in the case of Table 1. In each cell there is one example. These buildings have significant heritage value as they were either baptised by war and/or have architectural value.

Military built heritage site A, ungraded by AAB, is one of the best surviving of the 72 coastal pillboxes cum search light shelters that were dotted around the shoreline of Hong Kong Island when it was invaded on 18 December 1941. This is a case of open access, unmanaged private property (Rural Building Lot No. 1020) owned by a lessee: Ocean Park Limited. The pillbox sustained attacks by the enemy for several days. Its garrison was captured and executed by the Japanese invaders on Christmas Eve 1941. In December 1972 the site became the property of Ocean Park which neither fenced the pillbox off nor has taken any management care of it. It is very close to the Country Club (Rural Building Lot No. 1195), which adjoins Ocean Park, but there is no public road or path leading to the site. Ungraded by AAB, this PB is one of the 24 surviving PBs of the more than 90 PBs that defended Hong Kong Island [49] (Lai et al. 2021). The PB and its search light shelter were engulfed by undergrowth until some heritage conservationists cleared it in winter 2020 and spring of 2021. The site was reported in a local newspaper. Soon afterwards, a squatter moved in and occupied the site, but she has not fenced it off. Figure 1 shows the situation before and Figure 2 after squatting for this open access privately owned site.

Military built heritage site B is a group of buildings collectively called Pottinger Battery, which formed part of the much bigger Devil’s Peak military complex built around 1900 to 1914 [34] (Lai and Ho 2002). It witnessed, though appears not to have been directly involved in, heavy rear guard fighting before the defenders of the mainland New Territories withdrew to Hong Kong Island. This is a case of open access, unmanaged private property owned by the state. The Devil’s Peak site had three main parts: Devil’s Peak Redoubt, Gough Battery and Pottinger Battery, all graded II by AAB. The ensemble guarded the eastern sea passage into Victoria Harbour, had ceased being used for coastal defence by the late 1930s, and was disused and abandoned completely after the war. The government developed the nearby Permanent Chinese Cemetery in the late 1970s and an access road to the cemetery site was built that severed Pottinger Battery from the rest of the site above the road. A site above Pottinger Battery was also used for removing earth for the extension of the Kai Tak Airport runway signally impeding remaining access. Accordingly, unlike the Redoubt or Gough Battery, which have been frequented by picnickers and hill walkers because they are close to one of Hong Kong’s long distance walking trails (Section 3 of Wilson Trail), the Pottinger Battery site has been ignored by most visitors to Devils Peak, even though it has attracted much media attention for its scenic and historical value. Whereas a District Council has done some minor public works paving paths and installing a few signposts for the area above the access road covering Gough Battery and the Redoubt, there has been no government spending on managing the Pottinger Battery site. Though in June 2006 a group of researchers used a heritage trust’s funding to partially excavate the gun emplacement of the battery (buried in the earth borrowing for the airport runway), nothing has subsequently happened to alter the state of absolute neglect of the site. Figure 3 shows the 2006 immediate post excavation and Figure 4 the 2021 situation of the left gun emplacement of Pottinger Battery as an unmanaged open access government site.

Military built heritage site C: Unlike the gun emplacements at Gough or Pottinger Battery mentioned above, Gun Emplacement No 2, Jubilee Battery (Building site C), completed in 1939, has been professionally rehabilitated and actively managed by a university body. As shown in Figure 5, this is a case of an open access but well managed private property (Inland Lot No. 8950) along Victoria Road owned by a lessee, the University of Chicago Francis and Rose Yuen Campus, Hong Kong. Jubilee Battery and Mount Davis Fort (above Victoria Road), both graded II by AAB, saw active defensive actions during the Battle of Hong Kong. The terms of the land grant impose a duty on the university to manage the site; the university has discharged this duty well and has provided tourist information at the site. This gun emplacement is just a part of disused Jubilee Fort which had three gun emplacements and various ancillary structures including three searchlight shelters. The university has not fenced off the site, which can be conveniently accessed from a public path to one of the Coastal Artillery Search Light (CASL) shelters. Compare the conditions of this site with those of Gun Emplacement No 1, as shown in Figure 6, outside the university boundary.

Pillbox (PB) 313, Building site D, in the Kowloon Reservoir catchment area is an interesting case of open access property owned by the state and well managed by volunteers and the Country and Marine Parks Authority. Though it is not certain if it took part in the battle of Golden Hill, this PB is one of the four relatively well preserved examples of at least 93 identifiable pillboxes along the Gin Drinker’s Line (none of which, save those forming part of the Shing Mun Redoubt, has been graded by AAB). By 2022, the pillbox had survived some 85 years. The volunteers who take care of it are members of a community that in the late 1970s developed, on government land, a little sitting out area, which they call Fools’ Paradise [50] (Hung 2018). The PB is in its vicinity. After the place became zoned as part of the Golden Hill Country Park, the installations and garden in this place were permitted to stay but have not been allowed to expand. Members of the Paradise have continued tidying up the PB. Figure 7 shows the effects of such efforts.

Building site E, a PB in Chiu Yuen (Eurasian) Cemetery, Mount Davis, is a case of restricted access property (Inland Lot No, 8122) owned and actively managed under a 999-year lease by the Eurasian Cemetery. Though ungraded and with an uncertain battle history, during the occupation it was developed by the Japanese as a strong point [49,51] (Lai et al. 2011, 2021). The cemetery is an exclusive, and has been fenced off by walls along most of its boundaries. The PB was occupied by squatters in the 1960s but is now vacant. Visiting is by appointment only. However, military enthusiasts often visit this pillbox (Figure 8) by coming down a disused military path leading down from the old Mount Davis Fort to the upper border of the cemetery where the PB stands.

Building site F, Bokhara Battery, Cape D’Aguilar [52] (Davies et al. 2021), is a case of a restricted access property owned by the government once within a fenced off and actively managed area by the colonial era submarine telegraph and maritime mobile radio service company, Cable & Wireless. Since the management was taken over by PCCW, the exclusion of visitors who could (and still do) by-pass the fence on foot has ceased, but vehicular access is still restricted. With the spread of information through the internet of this Grade II historic building, which is close to the Cape D’Aguilar Light (a statutorily declared monument), more and more visitors come to this site at the southeastern tip of Hong Kong Island due to its historical value and scenic beauty. The Battery received both of its 9.2-inch guns from Pottinger Battery (site B) shortly before the war and it fired at a Japanese cruiser at extreme range during the Battle of Hong Kong, as well as shelling some land targets in the New Territories. Restricted access without active management means the property continues to deteriorate due to weathering. Figure 9 shows the pathetic conditions of an observation post of the battery.

Building site G, Tai O Heritage Hotel, became a Grade II historic building in 2010 and was given a UNESCO Asia award in 2016 [53,54]. This boutique hotel was the decommissioned Tai O Police Station, which was run by the marine police and had a vital security function until 1997. It is a case of a restricted access property owned by government but privately run by an NGO, Hong Kong Heritage Conservation Foundation Limited (HCF), which provides free guided tours for visitors. The government has reallocated the police station to the Home Affairs Department (GLA 534) which leases it to HCF. The hotel is one of the six projects under Batch I of Hong Kong SAR Government Development Bureau’s Revitalising Historic Buildings through Partnership Scheme (see Figure 10).

Building site H, the government Hong Kong Museum of Coastal Defence, occupies part of the former Lee Yue Mun Fort to the east of the Island East Corridor. To the south of the Devil’s Peak ex-military area across Lee Yu Man Pass, it is a case of a restricted access property owned and actively managed by government and open to the public. The museum site includes the Lee Yue Mun Redoubt, which is graded II by AAB and has been used for indoor curating, and the Pak Sha Wan Battery. The site was one of the battlefields during the Battle of Hong Kong. The museum has a lot of contracted security staff apart from using gating facilities to control access.

6. Discussion

The cases in the previous section demonstrate real life application of the LPRMM, which is a major contribution of the paper. From a property management point of view, the analysis of the eight real life cases under the LPRMM framework informs on theoretical and policy development as well as practical operations in four respects:

First, the examples testify to the paramount importance of the distinction between de jure rights and de facto control [55]. As explained in Section 3, privately owned resources can be open access. Ocean Park, Gun Emplacement No 2 of Jubilee Battery and Eurasian Cemetery (respectively, A, C and E down the private land ownership column cutting cross open and restricted access rows) are all managed by resourceful private property owners but the heritage buildings on them are open access. Open access resources can occur for whatever reasons in both private and state ownership, as in the case of PB14 in Ocean Park, PB313 near Fool’s Paradise for the former and Eurasian Cemetery the latter.

Second, investment in conservation efforts by users and owners are important in affecting the state of affairs of a heritage building. In terms of tidiness and curating facilities, the best examples are surely the Gun Emplacement No 2, Jubilee Battery, University of Chicago Hong Kong; the Tai O Heritage Hotel; and the Hong Kong Museum of Coast Defence (respectively, C, G and H) which are managed by either private or public bodies. The findings of Wright and Eppink (2016) on TEV [2] that heritage sites in areas with higher population density hold higher value, and conservation that supports adaptive re-use of sites generates higher values then passive protection certainly support this view. Heritage conservation intervention regarding buildings typically comes along by way of official grading followed by adaptive reuse by dedicated operators of recognised heritage buildings which can generate income as in the case of the Tai O Heritage Hotel or by resourceful private initiatives as in the case of Gun position No. 2 of Jubilee Battery. Ownership as a matter of property rights is important legally and socially. In both cases, the users need to secure a degree of ownership (under lease or licence) that allows them to regulate access so the sites can be exclusively bettered by investment, managed and used for public enjoyment.

Third, in any applicable heritage impact assessment the management of heritage property must take into account both issues of access and of day-to-day operation. In the examples of PB14, Pottinger Battery, and Bokhara Battery (A, E and F) there are concerns for the responsible property owners. With PB14, the proprietor (Ocean Park Limited, government) needs be concerned with the safety of people coming onto their land. The slope behind the PB and its search light shelter is not very stable. With Pottinger Battery, visitors risk falling into the magazine below the gun emplacements, while with Bokhara Battery there are risks from unstable structures, as well as those from falling off the unfenced cliff in front of the emplacements. Supposing such risks are effectively mitigated, there are also major questions with respect to any efforts to rehabilitate such structures for heritage tourism.

Fourth, volunteers, squatters and trespassers are significant players, if not stakeholders, in heritage conservation [55,56,57] (Hung 2015, 2017, 2018). In the examples of PB14 in Ocean Park, PB313 near Fool’s Paradise and the Eurasian Cemetery, one can see open access under both types of land ownership, i.e., private (A and E); and government (D).

Note that Grading confers a certain official status of social significance, and this has happened in Hong Kong [58,59]—in a sense creating some property rights that may bring into the scene government investment in conservation. While this is not at all seeking to explore the impact of grading on investment, a form of study that can verify the corollary of the Coase Theorem, but how built heritage under different de jure rights and de facto access arrangements appear to be. Still, the case of the reusing of the Tai O Police Station as Tai O Heritage Hotel certainly testifies to the importance of grading in conservation.

7. Conclusions

In any human mind there are large voids in knowledge. These are compounded by one’s lack of awareness of them. That is particularly so with respect to the void in one’s knowledge about the place in which one lives. Filling that void by studying the built leftovers of the past, a powerful aid for reclaiming the past, is a key step one should make to live better in the present and future. This inquiry into property rights for heritage conservation as a matter of land planning serves to promote such study informed by neo-institutional economics.

According to Google Scholar, on 8 August 2022, the journal Property Management published 118 papers with key words town planning; 214 urban planning and 87 regional planning, though it published just 1 paper bearing in its title the term town planning and another paper urban planning. Two mainstream planning periodicals Journal of American Planning Association and Town Planning Review, according to the same source on the same date, respective published 28 and 24 papers with key words property management but no title of such work bears this term in their titles.

Within the context of land use policy, this short paper canvasses the definitions of property management, writ large as town planning as a fiat boundary delineation (access control sensitive and relevant) activity [21,22,23,60], and property rights; offers a model that incorporates de jure rights and de facto access management as distinct dimensions, improving the ideas of Barzel and, for property managers of heritage resources; and interprets eight Hong Kong examples of colonial built military heritage, namely three pillbox sites (within Ocean Park property, near Fools’ Paradise, and at Eurasian Cemetery), three gun batteries (Pottinger, Bokhara and Jubilee), a boutique hotel (reusing Tai O Police Station) and a coastal defence museum (Hong Kong Museum of Coastal Defence). Interesting observations discussed are that investment with proper access management is critical and volunteer participation can be very helpful for heritage building conservation. Other than PB14 and PB313, all sites have been graded by AAB and are part of the international historical legacy of Hong Kong.

The LPRMM in this paper should be of interest to scholars involved in the management of private and public real estate, stimulating thoughts about access management as a variable in the science of the subject in land planning. It describes the multiple conditions of access to the various types of property by reason of which different profiles of rights and duties are activated on the part of the subject in charge, and different degrees and spheres of motivation to manage territorial resources depending on the local and supra-local users who may claim current and potential use. The LPRMM implies a taxonomy of the different above-mentioned conditions according to the possibilities of access and the opportunity/possibility of limiting it in order to preserve and return this heritage to public use should be a handy tool to assess management options. This should articulate well with other directions in planning research such as public–private partnership [61] and value capture [62] as far as boundary delineation for managing exclusion and inclusion is concerned.

It is hoped that this paper will stimulate thoughts about access management as a variable in the science of the subject in land planning as part of Target 11.4, Indicator 11.4.1 of Goal 11 of the UN Sustainable Development Goals (SDGs).