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When the Small House Policy was introduced in the 1970s in the New Territories, its highly commendable objective was to improve the then low standard of housing in rural areas. The policy allows an indigenous male villager, over 18 and descended through the male line from a resident in 1898 of a recognized village, to apply to build a small house, now commonly known as New Territories Exempted House (NTEH).

Other than the policy itself, unauthorized building works (UBWs) in NTEHs have been a concern in the last two decades. NTEHs are governed by the Buildings Ordinance (Application to the New Territories) administered by the Lands Department (LD). This is different from other private buildings which are controlled by the Buildings Ordinance (BO) administered by Buildings Department (BD). The law governing NTEHs provides exemption from the BO for the construction of NTEHs. The maximum development parameters for NTEHs are three storeys and 8.23 meters in height with roofed-over area generally not exceeding 65.03 square meters.

While LD administers applications for the erection of NTEHs, UBWs in NTEHs are liable to action by both LD and BD. It should be noted that UBWs in NTEHs are not covered by the Buildings Ordinance (Application to the New Territories) and are subject to the control of the BO. Actions by LD may include the issue of a warning letter and the registration of the same in Land Registry as well as re-entry of the property. For BD, it may issue a removal order under the BO requiring the owner to demolish the UBWs, failing which the UBWs may be removed by BD at the owner's expense. BD may also prosecute the owner for non-compliance with the removal order.

Over the years the Ombudsman has conducted three studies on UBWs in NTEHs. In 1996, the Ombudsman concluded that insufficient resources and low priority accorded to lease enforcements had resulted in the proliferation of UBWs in NTEHs. In 2004, the Ombudsman said that strategies and measures should aim to contain the problem with rationalization of non-serious cases and rigorous enforcement of serious ones.

In his third report released in April 2011, the Ombudsman considered that the selective enforcement regime and a narrow action threshold was ineffective in stopping the proliferation of UBWs in NTEHs and there was disparity of treatment for UBWs in NTEHs and those in other private buildings, giving the impression that NTEHs were privileged. The Ombudsman also stated that there were delays in the referral of cases to BD, inconsistency in the application of action criteria and disagreement on judgments between LD and BD.

Responding two months later, the administration proposed a new strategy under which BD would continue to accord priority to tackle UBWs in NTEHs which posed obvious hazards, plus UBWs being built or newly constructed. Where UBWs constitute serious contraventions of the law and create higher potential risks, they are subject to proactive enforcement action. For other UBWs, BD would introduce a registration scheme to collect more information for formulation of progressive enforcement plans.

Despite the complexity of the problem, the government has now taken the right and pragmatic approach in tackling UBWs in NTEHs by freezing the existing UBWs via the reporting scheme and stepping up enforcement action starting from UBWs that are new, posing higher safety concern and constituting blatant contraventions of the law.

It is suggested that the following issues be taken into account when fine-tuning the enforcement strategy. At present LD has a responsibility to tackle UBWs in NTEHs from the perspective of the lease and BD has a responsibility to tackle UBWs in NTEHs from the perspective of BO. The merging of the controlling agencies may improve the efficiency and effectiveness of control. It may also address the concerns of delay in referral of cases as well as inconsistency/difference in views identified in the Ombudsman study. This concept is similar to the control of the Home Ownership Scheme buildings, which fell under the purview of BO only after the Housing Department had sold the flats. If this approach is taken, LD could take up the enforcement as it administers both the lease and the law governing NTEHs. For implementation, BD can second staff with expertise in BO and delegate its authority to LD.

The author is a fellow of both the Royal Institution of Chartered Surveyors and the Hong Kong Institute of Surveyors. He was an assistant director of the Buildings Department when he retired from the HKSAR Government in 2010.

(HK Edition 02/18/2014 page9)