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LCQ5: Unauthorised building works in village houses in New Territories

     Following is a question by the Hon Lee Wing-tat and a reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (May 18):


     It has been learnt that the Government has been reviewing the New Territories "small house policy" for a long time, but no announcement has been made yet; recently, the Office of The Ombudsman published a report criticising that the authorities have been ineffective in clearing the unauthorised building works (UBW) in village houses in the New Territories, including small houses. In this connection, will the Government inform this Council:

(a) whether the authorities have compiled statistics on or estimated the present situation of the UBW problem of village houses in the New Territories, including small houses and ancestral homes; if they have, of the number of village houses in various districts which have unauthorised rooftop glass houses, enclosed balconies, additional storeys up to 4 or 5 storeys and unauthorised rooftop accommodation, broken down by type of UBW; and how the authorities will handle the problem, as well as whether they will impose regulation according to the types of UBW;

(b) whether it knows, in each of the recognised villages under the existing "small house policy", the respective numbers of indigenous villagers aged 18 or above who are eligible but still have not applied for small house grant, or whose applications have not yet been approved at present; of the land area within the respective villages at present and, among which, the vacant land area that can be used for building small houses; whether the respective areas of the villages concerned can be extended to increase the land available for building small houses; if they can be extended, of the land area that can be extended; whether it has assessed the impact of such policy on the UBW problem of village houses in the New Territories; and

(c) whether it has assessed if the long-standing protection under the exemption under the Buildings Ordinance (Application to the New Territories) Ordinance has affected the Government's handling of the UBW problem of village houses; whether the authorities have set up a "rationalisation working group" to handle the UBW problem of village houses at present; if they have, when the working group commenced work and when the relevant work will be completed, as well as whether the authorities will consult the public on the recommendations of the working group; whether the working group will propose exemption measures to allow the existence of UBW in village houses; if it will, whether it has assessed if this will result in two sets of policies or legislation in Hong Kong for handling UBW, such that the urban area and rural area are regulated by different statutes; and of the time for the authorities to complete the review on the "small house policy", and whether the review will cover recommendations relating to the standard and the UBW problem of small houses?



     The issue of unauthorised building works (UBW) in village houses in the New Territories (NT) has recently been a matter of public interest. I am grateful to the Hon Lee Wing-tat for asking the oral question today. This gives me the opportunity to explain the Government's views and to dispel some of misconceptions on the subject. As I mentioned at the meeting of the Panel on Development (the Panel) last week, I would, at the Panel meeting in June, present a comprehensive update on the progress of our work and seek feedback from Members. In view of the limited time for oral questions, I shall be happy to incorporate further information in the Panel paper in case there are questions from Members that may remain unanswered today.

     Village houses in the NT have a long history. The control for these houses has all along been different from that for buildings in urban areas. In other words, while they are all "buildings", they are subject to different regulatory and control regimes.

     The Buildings Ordinance (Cap. 123) which provides for the planning, design and construction of buildings and associated works, was enacted in 1955. Its origin can be traced back to the Buildings Ordinance in 1889 (No 15 of 1889). However, until the Buildings Ordinance (Application to the New Territories) Ordinance (then Cap. 322) came into force on January 1, 1961, buildings in the NT were not subject to control of the then existing Buildings Ordinance.

     The Buildings Ordinance (Application to the New Territories) Ordinance was repealed and replaced by the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121) on October 16, 1987. Both ordinances provided exemption for buildings which met the specified criteria from the requirement under the Buildings Ordinance to submit plans for approval by the Building Authority (BA) or to obtain the BA's consent for the commencement of the building works. They may be occupied without having to obtain occupation permits from the BA. They are also exempted from the regulations made under the Buildings Ordinance.

     These houses, which are exempted from certain provisions of the Building Ordinance, are what we refer to as New Territories Exempted Houses (NTEHs). Under present legislation, NTEHs may not exceed three storeys or be of a height of more than 8.23 metres (27 feet) and their roofed-over area generally should not exceed 65.03 square metres (700 square feet). These NTEHs include both New Territories small houses (NTSHs) and, in general, redeveloped village houses.

     My reply to the three-part question is as follows:

(a) Since the large number of NTEHs are scattered over an extensive area in the NT, we have not conducted a detailed survey on the UBW in these houses. However, from our observation, UBW are widely found among village houses in certain NT districts. The total is estimated to be in the tens of thousands. Their numbers also differ among districts, with the problem being more serious in Yuen Long.

     UBW come in many different forms and sizes. Their loading on building structure and the impact they have on the building safety vary. Generally speaking, the common forms of UBW include enclosed rooftops, balconies and canopies, external window grilles, anti-burglary grilles and metal gates, retractable canvas, and ground level and rooftop extensions. They also include structures which are in blatant contravention of the height and area restriction or even entire additional storeys.

     On the question of dealing with these UBW, The Ombudsman pointed out in an earlier direct investigation report (published in 2004) that, in view of the large number of UBW in NTEHs, the problem could not be completely resolved in the foreseeable future given the limited resources. Thus, The Ombudsman proposed that Government should consider a two-pronged strategy: on the one hand, "to develop a realistic enforcement policy for containment of UBW in NTEHs" to avoid further aggravation of the problem; and on the other hand, to explore ways for "rationalisation of existing UBWs that are safe, not serious and thus tolerable". I have to use quotations because there were some recent queries about the term "rationalisation" and I would like to point out the source of "rationalisation" here.

     The Administration has adopted and actively pursued The Ombudsman's recommendations. To curb the proliferation of new UBW, the Buildings Department (BD) and the Lands Department (LandsD) have continued to step up enforcement of the relevant legislation and the lease condition, specifically targeting new UBW in progress (WIP). Subject to the availability of sufficient evidence, they would also take enforcement action against new UBW already completed. In light of the recommendation in the direct investigation report published by The Ombudsman last month, we are reviewing existing procedures and strategies to enhance enforcement effectiveness. Specifically on the area for improvement as identified by the report, BD will broaden the definition of WIP to plug a loophole in enforcement. The BD will shortly issue clear guidelines to its staff concerned.

     In order to address the issue of existing UBW, the then Housing, Planning and Lands Bureau set up a "Working Group on Rationalisation of Unauthorised Building Works in New Territories Village Houses" (Working Group) in 2006, with representatives of the Bureau, the departments concerned and representatives of the Heung Yee Kuk. The task of the Working Group was to devise, on the basis of The Ombudsman's recommendation and the over-riding objective of ensuring public safety, a practical rationalisation plan which would be acceptable to the public while taking into account the principles of legality, reasonableness and compassion. The Working Group has developed a proposed preliminary directional framework on the handling of existing UBW, but the legal issues involved and the implementation arrangement would require further discussion and examination. Since the establishment of the Development Bureau in 2007, we have escalated the issues to the SDEV-HYK Liaison Committee which I chair personally, for discussion and exchange of views from time to time. Broadly speaking, our aim is to ensure building safety and, taking reference from The Ombudsman's recommendation for a "rationalisation scheme", draw up a practicable scheme for the regulation of different categories of UBW in NTEHs in a pragmatic manner.

(b) Under the Small House Policy (SHP), a male person over 18 years old who is descended through the male line from a resident in 1898 of a recognised village in the NT in Hong Kong may apply to the authority for building a small house on a suitable lot once in their lifetime.  

     From the commencement of the SHP in December 1972 until March 31, 2011, the Lands Department (LandsD) granted approval for a total of 36 094 small houses. Currently, 9 947 applications are still being processed.  

     LandsD has not compiled statistics on or estimated the existing number of indigenous villagers in recognised villages, who are 18 years or above and are eligible but have not applied for a small house grant. It is because the number will change with the birth, growth and passing away of the indigenous villagers. Besides, whether or not an indigenous villager would apply for a small house grant is a matter for individual according to his own circumstances and wishes. Not all eligible indigenous villagers aged 18 years or above will submit an application.

     The construction of small houses is in general restricted to inside the "village environs". There are 642 recognised villages approved by the LandsD. "Village environs" refers to a 300 feet distance surrounding a recognised village. Eligible indigenous villagers may apply for small house building within such an area.

     Furthermore, with the application of the Town Planning Ordinance to the New Territories, some areas in the NT have been zoned for village-type development. Permission from the Town Planning Board (TPB) is required where the site proposed for building a small house is located inside the "village environs" but lies outside a village-type development area. Consideration will also be given to the application if the site concerned lies outside the "village environs" but is located within a village-type development area, provided that the village-type development area concerned surrounds or overlaps with the "village environs".

     According to LandsD, the total area covered by the "village environs" and village-type development area and which may be used for the construction of small houses is estimated to be 4 960 hectares. Of this, an estimated 1 640 hectares is currently still available for application. Since the recognised villages represent those villages which existed in 1898 and because the principle for delineation of the "village environs", i.e. a 300 feet distance surrounding a recognised village, has been firmly established with the Heung Yee Kuk, the question of extending the "village environs" to meet the demand for building small houses does not arise.

     In the case of a small house proposed to be built outside the village-type development area, an application under section 16 of the Town Planning Ordinance has to be made to the TPB. Such applications will be considered on individual merits by the TPB, having regard to relevant TPB guidelines and other relevant factors (such as environment, transport and land use compatibility, etc.).

     As the SHP and the question of UBW in village houses in the NT are two separate issues of different nature, I do not consider that the SHP would have an impact on the Administration's handling of UBW.

(c) The exemption provided under the Buildings Ordinance (Application to the New Territories) Ordinance recognises the relative simplicity of the layout and design of NTEHs. This notwithstanding, LandsD may, upon issue of the Certificates of Exemption, impose conditions relating to safety aspects. In general, it requires the applicant to appoint a building contractor and a competent person to be responsible for the construction works. In addition, a Registered Structural Engineer or a Registered Professional Engineers should be appointed to supervise the construction of critical elements, including cantilevered balconies and canopies. The legislation and associated arrangement is compatible with the purpose of safeguarding building and public safety. It should not have any adverse effect on how the Administration would handle the UBW issue.

     In part (a) of this reply, I have addressed the question regarding the work and progress of the Working Group. Specifically, despite inherent differences between the regulatory regime for NTEHs and that for other buildings which are subject to the Buildings Ordinance, our primarily objective of ensuring building safety and safeguarding public interests applies equally to both. Our present policy direction is to adopt a two-pronged approach: curbing new UBW and properly tackling existing ones. In regard to curbing new UBW, notwithstanding the significant difficulties in investigation and proof, we have adopted the same approach as that for the urban areas and will endeavour to enhance enforcement effectiveness. As regards existing UBW, we will also take reference from the strategy of phased implementation and prioritisation, which has been adopted in the urban areas for over a decade. In this context, we will strike at those UBW which are in serious breach of the rules and regulations, but will defer action on cases that are "safe, not serious" as suggested by The Ombudsman. We will further develop detailed proposals in this direction, with a view to early implementation. I shall also apprise the Panel of the details at a later stage and would welcome views from Members, the Heung Yee Kuk and the public.

     On the Hon Mr Lee's question regarding the SHP review, the existing SHP has been in place for a substantive period of time. Any major change would raise complicated legal, land use and planning issues which require very careful and critical examination. Given the complexities involved, we do not have a specific time-table for the progress of the review.

Ends/Wednesday, May 18, 2011
Issued at HKT 17:32


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