Introduction - HKU Libraries - The University of Hong Kong

Introduction - HKU Libraries - The University of Hong Kong

THE UNIVERSITY OF HONG KONGLIBRARIESThis book was receivedin accordance with the BooksRegistration OrdinanceSection 4


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1Introduction1.1 In April 1995, the Office of the Commissioner forAdministrative Complaints (OCAC) published a report on a directinvestigation under Section 7(l)(b) of the Commissioner forAdministrative Complaints (COMAC) Ordinance (Cap. 397) on theBuildings Department's (BD's) enforcement action againstunauthorised building works (UBW). In the report, COMAC hadexpressed concern on the existence of UBW in village houses inthe New Territories (NT) and suggested that appropriate andeffective measures should be taken by the Lands Department (LandsD) and the BD to prevent the recurrence of the UBW problem inmulti-storey buildings in NT village houses.1.2 COMAC's primary concern is that there are prima facieevidence that the problems of UBW in village houses in the NTare proliferating and becoming more serious and that theenforcement actions taken by the Lands D and the BD against themappear inadequate and ineffective* COMAC thus decided to conducta direct investigation on the enforcement procedures and actionsagainst UBW in NT exempted houses (NTEHs) under Section 7(1) (b)of the COMAC Ordinance.PURPOSE AND AMBIT OF THE INVESTIGATION1.3 The main purpose of the investigation is to study theprocedures and actions of the District Lands Offices (DLOs) ofthe Lands D in the enforcement of UBW in NTEHs with a view toestablishing if -(a) the existing procedures are adequate andeffective; and(b)they are being carried out consistently by theDLOs.1.4 The investigation focused on the following issues inrespect of UBW in NTEHs .-(a)Policy, conditions and procedures for approving

1building of NTEHs.(b) Policy and procedures for identifying anddetermining targets for enforcement actions,including those against exempted houses builtwithout government approval.(c) Policy and procedures for tolerating andrectifying minor UBW.(d) Procedures for monitoring status of UBW beingtolerated and procedures for upgrading forenforcement actions.(e) Procedures and channels for handling enquiries,complaints and appeals.(f)(g)The role and functions of the District LandsOffice Conference (DLOC).Involvement of other departments, particularlythe BD in enforcement actions should there be anyoverlapping of jurisdiction and responsibilities; among them.(h) Other policies/procedures relevant to thissubject.INVESTIGATION1.5 The investigation had been conducted in accordance withthe provisions of the COMAC Ordinance. The InvestigationOfficers (IOs) had examined the relevant Lands D's subject filesand DLOs' case files covering the policy and enforcement actiontaken against UBW in NTEHs, discussed with the Lands D'sdirectorate staff at headquarters level, interviewed some DLOstaff in two selected NT districts and conducted site visits.The IOs also paid a visit to the BD to obtain relevantinformation on two cases of UBW in NT village houses.REPORT1.6 COMAC announced this investigation on 5 June 1995. ADraft Results Report (DRR) was sent on 17 January 1996 to theSecretary for Planning, Environment and Lands (SPEL), Directorof Lands (D of L) and Director of Buildings (D of B) for commentsby 7 February 1996. SPEL, on behalf of D of L, requested on 7February 1996 for an extension of this deadline and was givenuntil 8 February 1996 to make their comments, which were receivedby this Office on that day. This final investigation report wasissued on 14 February 1996.1-7 There are seven chapters and three Annexes in this' - 2 -

investigation report. The first six chapters deal with thepurpose and ambit of this investigation, the history of the NTEHscheme, the problem of UBW in NTEHs, the current policy, role andprocedures of government departments in dealing with the UBWproblem and finally our observations, findings, conclusions andrecommendations. The last chapter covers the comments of thedepartments concerned on this investigation report and the finalremarks of the OCAC in response to the comments.- 3 -•-

BackgroundTHE BUILDINGS ORDINANCE AND THE BUILDINGS ORDINANCE (APPLICATIONTO THE NEW TERRITORIES) ORDINANCE2.1 The Buildings Ordinance (Cap. 123) stipulates, interalia, that save as otherwise provided, no person shall commenceor carry out any building works or street works without havingfirst obtained from the Building Authority (BA) (the Director ofBuildings under the Buildings Ordinance (Cap. 123)) its writtenapproval and consent of the building works (Section 14).Building works includes any kind of building construction, siteformation works, ground investigation in the scheduled areas,foundation works, repairs, demolition, alteration, addition andevery kind of building operation, and includes drainage works(Section 2) . Basically, all building works, except thoseexempted works, carried out without the approval and consent ofthe BA are classified as UBW. Exempted works include buildingworks other than drainage works, ground investigation in thescheduled areas or site formation works not involving thestructure of any building and drainage works in or for anyexisting building which do not, inter alia, involve the structureof any building (Sections 41(3) & (3A)).2.2 The Buildings Ordinance (Application to the NewTerritories) Ordinance (Cap. 121) empowers the Director of Lands(D of L) to issue Certificates of Exemption in respect of certainbuilding works, site formation works and drainage works in theNT -(a)for a building to be built by any person and tobe used for non-industrial purposes;(b) for a building to be built by a communityorganisation for the use of the community;(c)(d)for a building to be built on agricultural landand to be used solely for agricultural purposes;andfor the replacement of a temporary structure inthe NT.Building works referred to in the Buildings Ordinance(Application to the New Territories) Ordinance has the meaningassigned to it by Section 2 of the Buildings Ordinance ..exceptthat it shall not include site formation works, drainage works,or the construction of seawalls. Section 6 of the Buildings' . . • - . . .-•'• 4"'- ' ' • .:• . ' •

Ordinance (Application to the New Territories) Ordinance empowersthe D of L to issue Certificates of Exemption in respect of siteformation works and drainage works separately.NEW TERRITORIES EXEMPTED HOUSEDefinition2.3 An NTEH is any building which is exempted from Sections4, 9, 14, 21, 28 and 30 of the Buildings Ordinance by virtue ofthe Buildings Ordinance (Application to the New Territories)Ordinance. In broader terms, it covers two types of buildingsin the NT -(a)(b)Small Houses (SH) built on land granted under theNew Territories Small House (NTSH) Policy toindigenous villagers in accordance with thespecifications of a NTEH; andHouses built on land granted outside the scope ofthe NTSH policy but are built in accordance withthe same specifications of a NTEH.Specifications of a NTEH2.4 The specifications of a NTEH are provided under theBuildings Ordinance (Application to the New Territories)Ordinance. Broadly speaking, the restrictions on dimensionsdepend on the type and usage of the buildings, as follows -A. New Building for Non-Industrial or Community UseA detailed description of the restrictions ondimensions is given in Annex I.B. Building for Agricultural UseThe building when constructed will be single storeyand of a height of not more than 4.57 m.C. Replacement BuildingThe building when constructed will have a roofed-overarea of not more than 37.16 m 2 and be of a height ofnot more than 5.18 m.2.5 In addition, the D of L has administratively imposedthe following restriction on the building of a village house fornon-industrial or community use -"The use of column and beam concrete frameconstruction is acceptable subject to the dimensions- 5 -

eferred to in (a)(1)(i) of Annex I being compliedwith and, for any party wall which is a load-bearingreinforced concrete wall, it should not be less than175 mm thick"Construction of an NTSH2 - 6 A person may build a NTEH provided that he -(a) owns a piece of land which permits NTEHdevelopment;(b) satisfies the requirements set by the Lands D;and(c) complies with criteria laid down in the BuildingsOrdinance (Application to the New Territories)Ordinance and obtains the certificates ofexemption in respect of building works, siteformation works and drainage works respectivelyfrom the relevant DLO of the Lands D prior to thecommencement of any building works.•2.7 Once the three Certificates of Exemption mentioned inparagraph 2.6(c) have been obtained, the following requirementsunder the Buildings Ordinance will be exempted by virtue ofSection 7(1) of the Buildings Ordinance (Application to the NewTerritories) Ordinance -(a) the need to appoint an authorized person (AP) ora registered structural engineer (Section 4);(b) the need to appoint a registered(Section 9) ;contractor(c) the approval and consent required forcommencement of buildings works from the BA(Section 14);(d)the need to apply to the BA for an OccupationPermit (Section 21);(e) the approval and consent required for carryingout drainage works from the BA (Section 28) ; and(f)the need for prior approval to construct accessto a street (Section 30)'.NEW TERRITORIES SMALL HOUSE POLICY2.8 The present NTSH policy was introduced in December 1972with the primary objective of enabling NT indigenous villagers,- 6 -

who needed housing, to build houses for themselves. It was alsoaimed at improving the then low standard of housing in the ruralareas of the NT by allowing replacement structures which wouldprovide more accommodation and proper sanitary arrangements.Another objective of the NTSH policy was to preserve the cohesivepattern of indigenous communities in the NT villages. The NTSHpolicy allows an indigenous villager to apply for permission tobuild a house on suitable Government land or private agriculturalland within his own village. SHs built in accordance with thespecifications of a NTEH are exempted from the provisions of theBuildings Ordinance and are by definition, NTEHs. As at 30 June1995, the number of SHs approved (with land grant documentsexecuted) under the NTSH policy is 17 736, distributed amongstthe NT districts as follows -Sai Tsuen Kwai Tuen YuenIslands North S ha tin Taipo Kung Wan Tsing Hun Long2 058 1 473 1 179 2 650 2 404 449 104 1 125 6 294UNAUTHORISED BUILDING WORKS IN NEW TERRITORIES EXEMPTED HOUSES2.9 A new village house built according to thespecifications of a NTEH will be inspected by the staff of theDLO concerned before the owner is issued with a Certificate ofCompliance. Minor breaches pertaining to NTEH (including SHs)detected at this stage include -,excessive built-over area,excessive height,excessive size of stairhood.excessive width of balcony and canopy,excessive width of overhang.2.10 Other common examples of UBW in NTEHs detected afterthe houses have been occupied include -A. STOREYB. EXTENSIONC. BUILDING WORKSadditional storey(s).ground floor extensions.unauthorised openings to adjacent house.^ 7 .

emoval of partition wall between two SHs.D. STAIRCASEE. ROOFTOPadditional outside staircase(s).open-sided rooftop structuresenclosed rooftop structures, includingbathroom and/or bedroom on rooftops.installation of cranes.excessive height of water tanks.toilet,P. BALCONYG. CANOPYremoval of parapet dividing two SHs.enclosed balconies.cages.flowering racks/pergola.enclosed canopies.extended canopy over government land.porches.H. EXTERNAL STRUCTURESlarge iron funnel on the external walls of thebuilding.UNAUTHORISED BUILDING WORKS IN OLD SCHEDULED HOUSE LOTS2.11 Probably due to a misconception of some villagers thatthey do not need Government approval for rebuilding their oldvillage houses on old scheduled house lots as long as these arefor their own occupation/ there have been cases where houses hadbeen rebuilt without government approval to a height of more than8.23 m, in excess of 3 storeys and with a roofed-over areaexceeding 65.03 m 2 . These houses are however by definition notNTEHs and fall outside the ambit of the Buildings Ordinance(Application to the New Territories) Ordinance. As they arebuilt without the prior approval of the BA, they should beregarded as unauthorised buildings according to the Buildings-• 8 -

Ordinance, order for demolition or alteration of which shouldrest with the BD.- 9 -

3Policy3.1 Basically, all land in Hong Kong are leased from theGovernment and it is essential for the Government to ensure thatthe use of any land and buildings thereon is strictly inaccordance with the lease, conditions and to take leaseenforcement actions should a breach occur. Due to the wide scopeof lease enforcement and the varying degree of seriousness of thebreaches, policies have been formulated by the Government whichgive priority to certain categories of enforcement and ensureuniformity in treatment of similar breaches. With reference tothe policy endorsed by the Executive Council on 30 December 1975,the established order of, priorities for lease enforcement actionsin respect of the use of buildings in both the urban areas andthe NT was set out below -(a) Dangerous or obnoxious industrial undertakings inresidential buildings;(b)Dangerous or obnoxious industrial undertakings inexisting or new non-industrial buildings otherthan permissible Ground Floor Trades and ServiceTrades.(c) Other industrial undertakings in residentialbuildings.(d) Other industrial undertakings in new nonindustrialbuildings other than Service Trades.(e) Misuse of parking areas in industrial buildings.• (f) Misuse of residential buildings (includingparking areas) not falling under (a) or (c).(g) Misuse of non-industrial buildings (includingparking areas) not falling under (b) or (d) .(h)Unauthorised additions to buildings, for example,breaches of site coverage, height restriction,plot ratio etc.- 10 -

3.2 Lease enforcement actions against UBW in NTEHs arecategorised under Priority (h) which is relatively lower than theother Priorities. Due to staff and resource constraints, theLands D has accordingly accorded a low priority in initiatinglease enforcement actions against UBW in NTEHs.Authority3.3 Broadly speaking, the Lands D may take leaseenforcement actions against anything not permitted under thelease conditions pertaining to the lot on which a building standsand these naturally include UBW. The authority to enforce thelease conditions is generally implied within the terms of thelease agreement while the Crown Land Ordinance (Cap. 28) confersexplicit powers upon the D of L to take lease enforcementactions. The Crown Rights (Re-entry and Vesting Remedies)Ordinance (Cap. 126) is also a relevant legislation giving theD of L the power to take re-entry and vesting actions againstbreach(es) of lease conditions.Procedures3.4 Lease enforcement actions normally arise whennon-conforming uses are detected through one of the followingchannels -A. PatrolStaff of DLOs would patrol their respective areas andreport on any breach of lease conditions which come totheir notice. A patrol programme should have beendrawn up in each district for the Lease EnforcementTeams although not every DLO has established such aprogramme due to resource constraint.B. ComplaintsComplaints from members of the public may be lodgedthrough the mass media or directly with the DLOs. Allcomplaint cases would be investigated and followed up.Areas subject to numerous or regular complaints wouldbe included in the patrol programme.C. Referral from government departmentsBreaches which came to the notice of other governmentdepartments may be referred to the DLOs forinvestigation and follow-up actions.D. Report by lessee/licenseeUnder Section 11 of the Crown Land Ordinance it is theduty of a lessee/licensee to notify the Authority- 11 -

(basically the D of L) of any unlawful structure,other than that erected by him or on his behalf, onleased land or land occupied under a licence.3.5 Upon detection of the breach(es), the DLO concernedwill consider taking appropriate actions which may include -(a) imposition of a penalty instead of taking leaseenforcement actions {in cases of relatively minorbreaches) ; or. (b) initiating lease enforcement actions against themore serious breach(es) by -(1) entering on the land and demolishing theunlawful structures under the provisions ofthe Crown Land Ordinance; or(2) exercising a right of re-entry upon therelevant lands or tenements and re-vestingthe said lands and tenements to the Crown byvirtue of the Crown Rights (Re-entry andVesting remedies) Ordinance.3.6 DLOs must seek Lands D Headquarters/ approval fortaking lease enforcement actions, unless blanket approval hasbeen given. Once approval has been given, the Senior LandExecutive (SLE) of the DLO's Lease Enforcement Team will decideonthe appropriate course of action if the case is simple andstraightforward. For more complicated or contentious cases,legal advice will be sought before such cases are submitted toeither the District Lands Officer personally or to the DLOC fora decision on the appropriate action to be taken. There is nofixed guideline or criteria on the circumstances under which acase should be submitted to the District Lands Officer personallyor to the DLOC for a decision. This varies from district todistrict and often it depends on the traditional practice of thedistrict. For example, in DLO/Sha Tin, a case will go to DLOCfor decision if the breach is recommended to be regularised ortolerated by imposition of a non-standard penalty. In DLO/YuenLong, District Lands Officer makes all the decisions personallywithout the need to submit cases to the DLOC.o . •3.7 If it is decided to take enforcement action, a filewill be opened for each case and the following steps will betaken -(a)the site will be visited and photographs of the UBWwill be taken;(b) site plan will be prepared and findings of site visits:• ' •"•'•'.reported;"' • " • • . --•".' •••• • ; • • ' : • " " . • . :;:.'—'.- ' .. ; " ."•-.-' ' V ' : •.' .. - ••• ; • • " •'. •'." '- 12 -

(c) technical officers will correlate plans to determineif the structure is on Government or private land;(d) Land Registry (LR) will be requested to providerelevant details such as registered site area, class,Crown rent payable, type and number of the Lot and thename and address of the registered owner etc.;(e) first warning letter with a deadline (normally twoweeks) will be issued for compliance;(f)(g)the site will be re-inspected after expiry of thedeadline;if the UBW is not rectified, final warning letter witha revised deadline (normally three weeks) will beissued for compliance;(h) the site will be re-inspected after expiry of therevised deadline to check compliance;(i)(j)if the UBW has been removed, the case will be bring up(BU) in three months for re-inspection, otherwiseCrown Land Notice under Section 12(1) of Crown LandOrdinance will be issued on site for compliance within14 days (compliance period may be less than 14 days ifurgent action is required); andthe site will be re-inspected and if the Notice is notcomplied with, the Government Contractors (GO will becalled in to demolish the UBW.There may be slight variations between different DLOs onrelatively minor issues such as the BU period after the issue ofthe warning letters and the format of the advisory/warningletters.3.8 This Office notes that the GCs are seldom employed.In the case of the Sha Tin District, compliance generally comeswith the issue of the Crown Land Notice if not earlier, and theGC had not been called for during the last two years. In YuenLong District, the GC had not been called simply due to lack offunds. The last resort of re-entry is also seldom employed.According to Lands D's records, there had only been two cases ofre-entry in the past three Years, both at the Tai Po District.Recently, a case was reported to be in progress in Yuen LongDistrict.3-9 The IOs had also reviewed the two re-entry cases in TaiPo. Although, both cases were not related to NTEHs, thecomplexity, extensive involvement and amount of paper workassociated with such an exercise were exemplary. Partiesinvolved included the Attorney General's Chambers (AGO, theBuildings Department (BD), the LR (then Registrar General), the- 13 -

owner's solicitors and of course, the DLO/Tai Po and other LandsD staff. An enormous amount of correspondence were exchanged andthe case in point took three years to complete. The opposingowner finally rectified the breaches to DLO/Tai Po's satisfactionand paid a penalty before the Consent Order was issued to cancelthe re-entry. This illustrates how re-entry actions, althougheffective, can be time-consuming and resource intensive.TOLERATION OF BREACHES OF LEASE CONDITIONS3.10 ^ In respect of minor breach(es) of developmentconditions contained in small house grants,, or example, minorinfractions of the built-over area or height, slightly excessivewidth of overhang etc., Lands D can exercise its power under thelease conditions and impose penalty fines. The DLOCs areauthorised to make decisions to tolerate such UBW and impose suchpenalties. The membership and terms of reference of the DLOC isreproduced at Annex II. The DLOC will first consider whether thebreach (es) in question can be tolerated or whether leaseenforcement action would be more appropriate. Should the DLOCdecide to tolerate the breach(es) , a penalty will be imposed onthe owner. The level of the penalty is dependent on the extentof the breach(es). For breaches of a minor nature, for example,minor infractions of the built-over area or height of thebuilding or a slightly excessive stairhood or balcony, a standardpenalty fine for each type of breach which ranges from $4 600 to$45 500 depending on the extent of the breach (es) , is payableonce for the lifetime of the building. For more extensivebreaches where a direct assessment is possible, such as excessiveroofed-over area, the level of penalty is assessed on the basisof buying back the excess accommodation. Where no directassessment is possible, the level of penalty is at the discretionof the DLOC. Such penalty is not intended to be a premium fora modification of the Conditions of Grant of the lot but a feein respect of the Government's forbearance to take action for thelifetime of that particular building.3.11 As a rule, criteria and guidelines for toleration arenot published although the public and villagers may already haverough ideas of them through enquiries with the Rural Committee(RC) concerned or through contacts with parties previouslyaffected by enforcement actions. The reasons for not publishingthese criteria and guidelines are obvious. Apart from thepossibility of misleading the public that such irregularities orbreaches will "automatically be legalised" upon payment of thefine as a matter of right, there is the added danger of thepublic being encouraged to commit such breaches.ENFORCEMENT APPROACH3.12 The Lands D does not have comprehensive details to*- 14 -

indicate the size of the UBW problem in NTEH, due primarily tothe lack of resources to conduct a general survey of all UBWs andthe variable and changing nature of the problem. Some, but notall districts had however conducted surveys to evaluate theseriousness of the problem. For example, DLO/Sha Tin conducteda survey on small houses in rural villages in the district andidentified approximately 1 240 instances of UBW in Sha TinDistrict. DLO/Sai Kung conducted a similar survey of 10initially targeted villages and revealed about 300 instances ofUBW. From this result, the DLO/Sai Kung estimated that theremight be some 2 300 cases throughout the villages in Sai KungDistrict. DLO/Islands had also conducted four surveys atdifferent times from 1988 to 1994 which revealed the existenceof about 2 000 instances of UBW on the four islands, viz. Lamma,Peng Chau, Cheung Chau and Lantau within the Islands District.The results of these surveys further confirm the concern of thisOffice that the UBW in NT is proliferating and aggravating.3.13 This Office notes a different approach adopted by DLOsin the enforcement process in respect of the registration of theadvisory letters against the property titles with the respectiveLand Registry. DLO/Yuen Long, for instance, register theadvisory-letters with the Land Registry whereas other DLOs donot.INVOLVEMENT OF BUILDINGS DEPARTMENT3.14 Under Section 12(1) of the Crown Land Ordinance, theD of L has the statutory authority to order the lessee of Crownlease to demolish any UBW. If the order has not been compliedwith after a specified period, the DLO may consider takingfollow-up action described in the preceding paragraphs. In someinstances, it may be more appropriate to refer the cases to theBD for further action under the Buildings Ordinance. The reasonsfor referrals can be summarised as follow -(a)(b)(c)the breaches are in contravention of the BuildingsOrdinance or the circumstances of the breach are suchthat enforcement action under the lease condition isconsidered impracticable, for example for OldScheduled House Lot ' (OSHL) held under the Block CrownLease (BCL) there are no height restrictions and itwill be difficult for the Lands D to take leaseenforcement action against a building of say fivestoreys for a breach of the Second Covenant of theBCL; and/orthe demolition of the UBW concerned would requireexpert supervision on safety or other technicalreasons; and/orThe UBW are so substantial that demolition is beyondthe capability of the GC of Lands D.- 15 -

3.15 During the last three years, a total of 580 UBW caseshave been referred to BD from various DLOs for action under theBuildings Ordinance and these 580 UBW cases are not restrictedto NTEH only. However, for various reasons which will beexplained later on, the response from BD in respect of suchreferrals had been rather disappointing.BUILDING DEPARTMENT'S 1988 POLICY ON UBW 13.16 With effect from March 1988, BD had introduced a policyunder which UBW are classified into a High Priority (HP) Groupand Low Priority (LP) Group. For HP Group, enforcement actionis taken as a matter of priority, and for the LP Groupenforcement action can be deferred. The criteria forclassification are as follow -(a) High Priority Group(i)(ii)(iii)(iv)(b) Low Priority GroupUBW constituting an imminently dangeroussituation where there is obvious danger tolife or property*Significant new UBW irrespective of the dateof completion of the building on which theUBW have been erected.UBW recommended for removal by DistrictBoards, District Offices, BD itself or othergovernment department or public agencies.Major UBW which contravene the BuildingsOrdinance and lease condition at the sametime.UBW not covered by the High Priority Group.3.17 Under the BD's current policy, UBW in the LP group maybe upgraded to the HP Group under certain circumstances,particularly where the UBW may lead to deterioration of theenvironment or may render good building management difficult.In the Report of the Investigation on Unauthorised BuildingWorks published in April 1995, COMAC pointed out that the1988 Policy on UBW was inherently unfair and inconsistentand should be reviewed (para. 8.13) .- 16 .-

BUILDINGS DEPARTMENT'S EXPERIENCE3.18 In October 1992, the BD and the Lands D decided to usetwo blatant cases from the Yuen Long District as trial cases toenforce the removal of UBW in two NTEHs. The two cases involvedmainly the construction of four storeys instead of three aspermitted and other breaches. Both departments reckoned thatsome positive measures were necessary to deter further worseningof the UBW problem within the village.3.19 Subsequently on 16 September 1993, removal orders wereissued under Section 24 of the Buildings Ordinance for theremoval of the entire buildings as they contravened Section 14of the same Ordinance. The reason for the requirement to removethe entire buildings was that they exceeded the permitted heightof an NTEH and were therefore not entitled to the exemptionsunder Buildings Ordinance (Application to the New Territories)Ordinance thereby rendering the entire buildings UBW. Bothowners objected to the orders on various grounds, includingignorance of the restrictions, and the cases dragged on for overtwo years. The owners sought toleranc6 of the breaches and oneowner even enlisted the help of the RC in the process. BD hadexperienced great difficulties and resistance from the villagersconcerned in enforcing the orders and in May 1995, informed LandsD that no further action on reports of UBW in NTEH will be takenuntil the results of the two trial cases could be evaluated.3.20 After much wrangling, one case was eventually concludedin October 1995 after the owner had rectified the situation toBD's satisfaction by removing the enclosed fourth floor anderecting a partition so that the NTEH dimensions could be met.As for the second case, BD plans to apply to the District Courton 18 January 1996 for a closure order before calling in the GCto demolish the entire building if the owner continues to ignorethe Section 24 removal order. As can be seen from the two cases,it took the BD over two years to conclude just one single case.Although the second case will probably be concluded shortly, theend results may prove rather devastating to the owners whoseentire building will have to be demolished. This Office canappreciate the difficulties and possible repercussions associatedwith such drastic actions in extreme cases. For the lesscontroversial cases, the end results are also far fromsatisfactory for reasons to be explained in the next chapter.- 17 -

4Problems intPROBLEMS IN DEALING WITH UBW IN NTEH4.1 Having reviewed the information supplied by the D ofL, the relevant records of selected DLOs and legislations, anumber of problems had been identified in dealing with the UBWproblem in NTEH and these are explained in greater detail in theensuing paragraphs.Legislation4.2 Under existing legislations, Lands D can require theowners to remove UBW or in default, call in the GC to removethem. However, due to insufficient resources and funding, LandsD can seldom engage the GC. The only avenue remaining is forLands D to take re-entry/vest ing actions under the Crown Rights(Re-entry and Vesting Remedies) Ordinance, which means that theGovernment will re-possess the land and the premises builtthereon. This seems an extremely harsh measure especially if thecontravention is one which poses no immediate danger to thepublic. Except for extreme cases which are rare, the punishmentby way of re-entry/vesting far outweighs the offence.4.3 The procedure for taking re-entry action is cumbersomeand time consuming. A flowchart depicting the re-entry/vestingprocedures is in Annex J1IX. In essence, it is similar to themore common lease enforcement action but prior approval from theGovernment Land Agent/Estate Management (GLE/EM) of Lands DHeadquarters must first be obtained. The instrument of reentry/vestingnotice will be gazetted and registered with the LR.If discontent, the owner can appeal to the Governor-in-Council.4.4 If an owner puts up an UBW, he gets away with it foras long as the Authority has no knowledge of its existence. Inthe worst case scenario, he will be compelled to have it removedat his own cost. On the other hand, Government has to spend a- 18 -

great deal of resources to deal with the problem, such as thestaff costs of the Lease Enforcement Teams, the charges leviedby the LR for confirmation of the ownership details and theregistrations against the property titles and other departmentalexpenses. These costs are all borne by the Government.4.5 The law does not provide heavier penalties for repeatedbreaches. The same process of investigation and follow-upactions will be repeated exactly as if the breach was committedfor the first time and the owner will only be compelled to removethe UBW again without extra penalties. In some cases the removaland reinstallation have been made easy by the use of light-weightremovable materials in the construction of UBW, e.g. the use ofaluminium frames that can be easily clipped on to form anenclosed balcony.Priority4.6 The Executive Council had decided in December 1975 thepriorities for lease enforcement work. With reference to thatdecision, unauthorized additions to buildings has been accordeda relatively low priority among other infringements as mentionedin paragraph 3.1. Therefore, DLOs tend to accord a low priorityto lease enforcement against UBW in NTEH. Understandably,'priority and therefore resource are often channelled to moreurgent tasks like the resumption of land for development purposesand the processing of SH applications where delay may result insignificant increases in cost to the Government or attractcriticism or complaints from the legislature and the public.Comparatively speaking, there is no compelling urgency inhandling most UBW cases.Resources4.7 The amount of resources assigned to the LeaseEnforcement Section of each DLO varies, but a typical set up willinclude one SLE, (mostly on a part time basis) , one LandExecutive (LE), one or two Land Inspector I (LI/I) and one or twoLI/IIs, mostly on a full time basis. In the case of theDLO/Islands however, the Lease Enforcement Teams there,comprising 1^ LEs, itf LIs/I and 2 LIs/II, has to cover fourislands, viz, Cheung Chau, Lamma, Peng Chau and Lantau. Two DLOshave two teams but in terms of establishment and strength theywere not better off than the other DLOs. A detailed breakdownof the establishment and strengths of each of the DLO's LeaseEnforcement Section as at December 1995 is set out in the tablebelow -- 19 -

DistrictYuenLongSha TinSai KungTai PoNo. ofTeam2111SLE111«LEE*2211s#1111LI (I)E S2 23 31 11 1LI (II)E S2 23 32 12 1Total®E S6 58 74 34 3NorthIslandsKwaiTsingTuen WanTuen MunTotal14111131%1•%17 1 //.101111011M1H17Y

out the resources available for lease enforcement against UBW.4.11 BD is not better off in terms of staffing resources inthe NT. There are five teams under the supervision of a SeniorBuilding Surveyor covering the entire NT. The area ofresponsibility of each team (the team numbers are assignedarbitrarily) is as follows :1 Tai Po, Sai Kung & Islands2 Yuen Long, Sheung Shui, Fanling & NewTerritories (North)3 Sha Tin & Kwai Chung4 Tsuen Wan5 Tuen Mun & Sha Tin4.12 The total establishment of the five teams is nine,consisting of five Principal Survey Officers (PSOs) as teamleaders and four Senior Survey Officers (SSOs)/Survey Officers(SOs) as assistants. The current strength is eight, comprisingfive PSOs and three SSOs/SOs and they are responsible for thewhole of the NT, including Islands. With such staffing level,it is understandable that the five teams can easily beoverburdened by the number of UBW reports received by the BD inNT, which amounted to 1,415 in 1994-95. The BD teams would behard pressed to handle their own workload even without theadditional 580 cases referred to them in the past three years byLands D.4.13 Some DLOs, like DLO/Yuen Long had attributed the lackof follow-up action after the issue of the warning letter and theregistration of the advice/warning letter with the Land Registrarto the shortage of staff. This apparent inaction might give anincorrect signal that the UBW is being tolerated and accepted bythe. Government. Unless firm and decisive action is taken to curbtheir growth, and with land remaining a scarce commodity in HongKong, the problem of UBW will continue to proliferate.4.14 With resources at the present level/most DLOs, withthe exception • of Sha Tin, could not mount regular patrolprogrammes in the villages. As a result, UBW and even an entirebuilding could have been erected without the Authority'sknowledge and permission. Although patrol programmes alone maynot eradicate the UBW problem, they serve the useful purpose ofdetecting UBWs, particularly those blatant ones and bringing itto the attention of the enforcement teams for early actions. Thepresence of patrolling officers at regular intervals will alsoserve as an effective deterrent to the villagers.- 21 -

Attitude of Villagers4.15 ^ As mentioned earlier, many villagers still hold a wrongperception that they do not need Government approval forrebuilding their old village houses as long as these are fortheir own occupation. The two trial cases are blatant examplesof complete disregard of the restrictions placed on NTEH. Somevillagers would adopt an antagonistic attitude when DLO orHousing Department (HD) staff attempted to take enforcementactions in the villages and often the police had to be called into provide support, and protection to the staff engaged inclearance operations. The BD on 19 December 1994 reported thatthey had met with strong resistance from the villagers in theirattempts to take enforcement actions against the UBW in the twocases. The RC concerned with one of the cases had warnedDLO/Yuen Long that "the proposed clearance action will upset thevillagers who will resist .. . ." and the RC also attempted todefuse the situation by soliciting DL0 7 s assistance by*sendinghis staff to ensure that the clearance work was done inaccordance with government regulations.- 22 -

5OverallObservationsand Findings5.1 After studying all the relevant information providedby the Lands D and the BD on the subject of UBW in NTEH andvisiting various sites in the NT,, this Office has gained a betterunderstanding of B the issues involved. This chapter will set outour overall observations and findings with a view to drawing ourconclusions and recommendations in the next chapter.5.2 This Of fice notes that the Lands D had set its priorityfor lease enforcement according to the policy endorsed by theExecutive Council in 1975. High priority was basically accordedto enforcement against dangerous or obnoxious industrialundertakings in residential and non-industrial buildings as theseproblems were apparently rather serious in those days. Given thepassage of time and the gradual transformation of Hong Kong'smainstream industry from manufacture-oriented to service-orientedindustry since 1975, a significant number of local industrialundertakings had been relocated to mainland China. The problemsof industrial undertakings in residential and non-industrialbuildings might have significantly diminished as a result. On theother hand, the problems associated with UBW are becoming moreaggravated. It seems timely, after 20 years, for theAdministration to revisit the 1975 policy with a view toreassessing the relative priorities for lease enforcement.5.3 In the Report of the Investigation on UnauthorisedBuilding Works published by this Office in April 1995, it waspointed out that one of the major problems of the 1988 policy onUBW, which this Office opined was inherently unfair andinconsistent, was the lack of sufficient staff resources to carryout the policy in a proactive manner. The Administrationmaintained that in setting its policy, the Government was boundto take into account many factors including/ among others, theconstraints on its resources and the relative priorities givento all the many calls upon them and the views of the communityand that the 1988 policy was arrived at in a measured andconsidered way. This Office was of the view that in order totackle a problem of this magnitude and complexity, in additionto time and resources there should be a firm commitment and- 23 -

determination to grasp the nettle and to work out a positive planfor actually containing, if not resolving this problem. InChapter 4, this Office has highlighted resource constraint as oneof the major problems attributing to the proliferation andaggravation of UBW in NTEH. This Office appreciates that theAdministration allocate resources basically in accordance withthe relative priorities given to the many calls upon them and theviews of the community. It is therefore a question of whether theenforcement against UBW in NTEH should be accorded a higherpriority in the light of changing circumstances as brieflydescribed in para. 5.2. If after review, the Administrationconcedes that lease enforcement against UBW should be accordeda higher priority, serious consideration should then be given toallocating or redeploying the appropriate resources toenable the concerned departments to more effectively andproactively deal with the problem. Resource constraintapart, this Office still maintains the view that there shouldbe a firm commitment and determination on the part of theGovernment to work out a positive plan to tackle the problems ofUBW.5.4 This Office observes that some owners of NTEH may beignorant of the restrictions placed on the exempted houses butmany of them are aware of them but choose to ignore them wheneverit suits their purposes. The IOs had accompanied LeaseEnforcement Teams on inspection duties on two occasions andwitnessed that some UBW on roof-tops in one village were erectedin such a way that they were barely visible at street level.They were painted in the same colour and built to the same heightas the adjoining stairhood that made their detection verydifficult. • Another case of blatant disregard of the leaserestrictions was a development in Yuen Long in which each of theexempt"houses therein was internally subdivided into 14 units,each with separate water and power meters and entrances, some ofwhich via unauthorized external staircases. Although the ownersclaimed that each unit was only a self-contained -suite, the factthat each unit was provided with a separate entrance proved thatthey were purposely designed and built to facilitate separateownership or tenancy. No Letter of Compliance was issued to thisdevelopment, which was obviously a case of non-compliance fromthe start.5.5 Under the current legislation, there is a lack ofsuitable deterrent measures that Lands D can take to preventviolation of the restrictions on the NTEH. As re-entry/vestingaction is too drastic a measure to be frequently employed, theworst scenario for the owners of UBW which are not too seriousor dangerous may be the demolition of the latter. By doing so,Government has to devote a great deal of resources to constantlymonitor, control and rectify the situation. This Office is ofthe view that in order to discourage the proliferation of UBW inthe^ interest of the public, the Lands D should be able toadminister suitable punitive measures to deter offenders,particularly the defiant and/or repeated offenders, in very much- 24 -

the same way as traffic enforcement by the issue of multiplepenalty tickets to similar offenders. Owners must be given aclear and unambiguous message that UBW will not be tolerated andif they^ still choose to transgress in this area, they will beappropriately penalized financially until the UBW are removed.It is understood that this may involve extensive consultation,substantial legislative amendments and other administrativeconsiderations. Nevertheless, it is felt that the feasibilityof adopting an equitable penalty scheme should be evaluated.Consideration could be given to imposing fixed penalty finesappropriately set according to the seriousness and incidence ofpersistence and/or repetition of the breach (es) against the moreserious breach (es) in addition to existing enforcement measures.For minor breach (es) in existing NTEHs, the same measures ascurrently applicable to new NTEHs could be adopted,5.6 Another effective determent may be the registration ofthe advisory letter against 'the property title at the LR. At themoment, DLO/Yuen Long is the only DLO that exercise suchregistration. The registration of the advisory letter and theLetter of Compliance after rectification with LR comes with a fee(normally about two hundred dollars) to be borne by Government.It is evident that when an owner wants to dispose of his propertywhich had been registered, he is more likely to purge the breachon his own accord so that the sale will not be jeopardized. ThisOffice feels that this practice should be exercised throughoutall DLOs. Arguably, the registration will have little effect ifthe owner has no intention of selling his property in theimmediate future but given the volatile property market in HongKong, such encumbrances on future transactions will make theaverage owners think twice and take voluntary action to removethe UBW.5.7 This Office notes that most DLOs are provided with oneLease Enforcement Team as detailed in Chapter 4. DLO/Yuen Longhas two teams but they have to oversee a total of 130 scatteredvillages, DLO/Islands may have four teams on paper but theircurrent total strength is only four-and-a-half, including allranks and they have to cover four islands, viz. Lamma, PengChau, Cheung Chau and Lantau. It is worth mentioning again thatthe Lease Enforcement work on UBW in NTEH is only part of theteams' daily work as they have to also deal with UBW in multistoreybuildings and misuse of buildings. Other DLOs are notmuch better off in staffing resources. Considering the size andnumber of villages in each district and the extent of the UBWproblem, the overall resources for lease enforcement actionsdoes appear to be totally inadequate.5.8 The need to resolve cases and take enforcement actionsquickly and decisively are obvious. Long unsettled cases^aredemoralising as the sense of accomplishment diminishes with time.Furthermore, slow progress means that cases may be handled bydifferent case officers due to staff changes. Continuity is lost- 25 -•

and further delays may result because the new case officers willneed time to familiarise with the details of each case beforeproceeding further. Another point of equal, if not more,importance is that when cases cannot be resolved quickly, thepublic will take that as a tacit approval or toleration by theGovernment of the UBW in question. This Office observes that,in most UBW cases, the problem could be settled if LeaseEnforcement Sections are able to call in the GC as and whenneeded. This calls in the question of adequacy of funding forGC action. The fact that a clearance operation in a village hadto be withdrawn due to lack of funds to call in the GCdemonstrates the inadequacy of funding. Considering that it isthe owners of UBW who should finally bear the cost, there doesnot appear to be any valid reason why adequate funding cannot beprovided for by Government to meet these requirements.5.9 This Office believes that patrol programmes willdefinitely serve the purpose of detecting and controlling theproliferation of UBW in the villages. The officers on patrolduties can spot obvious UBW and report them to the LeaseEnforcement Teams, which can take follow-up actions. In theabsence of proper patrol programmes, the DLO would have to dependon complaints and referrals from other departments in order todetect UBW in the villages. However, in view of the scatteredlocations of exempted houses and the vast area of each district,mounting effective patrol programmes is likely to require asubstantial number of staff.5.10 On the question of procedures for handling enquiriesand complaints on UBW, this Office observes that these areclearly stipulated in the Lands Administration OfficeInstructions. In the course of investigation, the IOs observedthat all the enquiries and complaints on UBW received by theLands D from members of the public had been promptly acknowledgedand responded to. No delay was evident. As regards the channelsfor appeal against lease enforcement actions, the IOs noted thatafter the issue of the first warning letter, most of the affectedowners would either make a telephone enquiry with the caseofficer concerned or submit a letter asking for the retention ofthe UBW in question on various grounds. The instances of ownersdisputing the existence of the UBW or challenging the legalrights of the Lands D in ordering the removal of the UBW werevery rare. Upon receipt of the enquiries, staff of the DLOconcerned would normally arrange an interview with the owner toexplain the relevant legislation and the need to purge thebreach(es). If the UBW remained intact after the specifieddeadline for removal, a second warning letter would be issuedwhich served both as a reply to the owner's enquiry and as afinal warning before other more drastic actions would be taken.There was no formal channel of appeal although some owners doengage solicitors to argue for their cases. This Officeconsiders that the present internal procedures for handlingenquiries, complaints and appeals in respect of UBW in NTEHswithin the Lands D are generally adequate.- 26 -

6Conclusions andRecommendations6.1 ^ Based on the discussions in the preceding chapters,this Office has the following conclusions -(a) there is a proliferation of UBW in NTEH. The exactsize of the problem cannot be ascertained as no up-todatesurvey data is available. Sampling surveysconducted by some DLOs however indicated that theproblem is growing;Ob), some of the UBW cases, such as those involving theconstruction of an additional storey can be quiteserious and display a "blatant disregard of therestrictions placed on them;(c)(d)the scattered location of the villages in most partsof NT makes it difficult to detect and control the UBWproblems compared to the Urban areas;it is possible for people in NT to put up NTEH withoutobtaining first the Certificates of Exemption from theDLO and/or the Certificate of Compliance because thehouses are mostly self-occupied and the question ofsale or transaction will not frequently arise* In theurban area, such cases will unlikely happen/. (e) due to resource constraint, the DLOs have not beenable to initiate GC actions to remove UBW upon defaultof owners to rectify them as frequently as thesituations warrant. This has resulted in the presentsituation where either the UBW are tolerated or thatvery harsh measures such as re-entry and vestingactions have to be taken. There is at present noeffective deterrent measure against UBW in NTEH; and(f)the lack of priority and adequate resources for theLease Enforcement Teams of DLOs have apparentlyattributed to the proliferation of the problem.6.2 This Office has the following recommendations forconsideration by the Administration -(a) Review of Priorities and Procedures- 27 -

(1) The Administration should review the presentpriorities accorded to the enforcement againstUBW in NT as a whole in relation to otherpriorities in the light of circumstantial changessince 1975 and determine whether those UBW in NTnot yet acted upon should continue to betolerated, given the extent of proliferation andseriousness of the problem.(2) Lands D should review the present procedures forsubmitting recommendations on lease enforcementactions on UBW cases to the District LandsOfficer or the DLOC for a decision with a view toworking out a uniform and consistent approach forall DLOs to follow.(b) Detailed Assessment of the Problem and ResourceRequirements(c)(3) Lands D should cause a sampling survey to beconducted in the NT to assess the magnitude andseriousness of the UBW problem in NTEH in eachdistrict.(4) Based on the findings of the above survey, LandsD and BD, in consultation with the Secretary forPlanning, Environment and Lands if necessary,should formulate the appropriate policy andprocedures to tackle the problem.(5) Lands D and BD should then assess the requisiteresources to effectively and efficiently carryout these policies and procedures.(6) Additional resources from the Administrationshould be sought if existing resources provedinadequate for enforcement against UBW in NTEH,including GC actions.Enforcement and Public Co-operation(7) As an alternative or supplement to additionalresources for enforcement, Lands D should explorethe feasibility of introducing an equitablepenalty system against breaches of the NTEHrestrictions. For minor breach(es) in existingNTEHs, the system could model on the existingpenalty system adopted for minor breaches in newbuildings. For more serious breach(es),consideration could be given to imposingequitable penalty fines appropriately setaccording to the seriousness and incidence ofpersistence and/or repetition of the breach(es)in addition to the current lease enforcement- 28 -

measures. The relevant consultative bodies inthe NT, such as the DBs, the Heung Yee Kok andRCs will need to be consulted before suchmeasures are to be introduced. It is deemedappropriate that Lands p should consult the AGCon the need for legislative amendments to set putmore explicitly Lands D's power to imposepenalty fines which is currently exercised underthe lease conditions.(8) Lands D and BD should solicit relevant bodies',such as DB's, Heung Yee Kok's and RCs' etc.assistance in publicizing Government's positionon UBW so that the villagers will have a clearerunderstanding of the Government's policy of nontoleranceof UBW in NTEH and to defuse thehostile feelings towards the enforcingauthorities.(9) Lands D should consistently apply the practice ofregistration of breaches against the titles ofproperties throughout the DLOs. If this practiceis adopted throughout the NT, the affected ownersshould be informed of registration and its likelyeffects on property transactions when thewarning/advisory letters are issued to them;Owners should also be informed of any deregistration,i.e., registration of the Letter ofCompliance after they have complied with theremoval order.- 29 -

7Final RemarksRESPONSE OF THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS7.1 SPEL submitted the following specific comments -(a) Para. 6.2(1) : There is no conclusive evidence thatthe^XJBW problem in NT has proliferated. Given thelimited resources, priority has to be accorded tothose UBW where public safety is concerned. SPEL'spolicy is consistent in respect of NTEH and urbanbuildings and the objective, in the short term, is oneensuring public safety and containment of the problem.(b) Para. 6.2(2) : A uniform approach should apply to allnine districts on the basis of more effectiveprocessing and no extra staff.(c) Para. 6.2(3) : A sample survey will be useful inidentifying the problem but not providing thesolution.(d) Para. 6.2(4) : The formulation of policy andprocedures to tackle the problem will depend on thefindings of the survey.(e)Para. 6.2(5) : Given the more pressing need in landresumption for new development, it is unlikely thatadditional resource would be given to leaseenforcement duties of this nature.(f) Para. 6.2(6) : Same comment as per (e) above and thatconsideration should be given to streamliningprocedures rather than allocating additionalresources. The use of GC should also be more activelypursued. It is questionable whether the cost of recoverable.' • • ' '(g) Para. 6.2(7) : New legislation for a penalty systemwould be necessary. There is no annual licensingsystem and enforcement of such a fixed penalty systemon breaches would be very difficult.(h) Para. 6.2(8) : The recommendation is agreed. SPEL'sstrategy should be to promote awareness and attitudeby public education and public information efforts.Announcements of Public Interest (APIs) could be used.- 30 -

(i) Para. 6.2(9) : The recommendation is agreed. Althoughthis (the registration of breaches against propertytitles) may have a minimal effect on those NTEH whichare occupied by villagers and not for sale, it willdefinitely have a deterring effect on UBW.RESPONSE OF THE DIRECTOR OF BUILDINGSGeneral Comments7.2 The D of B notes that problems have been identified inthe DRR on UBW in NTEH. He agrees that the problems should beaddressed and in this light, welcomes the direct investigationand acknowledges that there were merits in principle in therecommendation of conducting a review. As to the scope of thereview and related matters, e.g. resources and the departmentsinvolved, further discussions within the Government arenecessary. He accepts the participation of BD in the review.Specific Comments7.3 The D of B also submitted the following specificcomments - .(a) Paras. 2.1 & 2.2 : The Buildings Ordinance(Application to the New Territories) Ordinance Cap.322 was repealed on 16 October 1987. NTEH builtbefore this date required no Certificate of Exemption.(b) Paras. 2.11 & 3*14(a) : Invoking the BuildingAuthority's powers under the Buildings Ordinance as aremedy for UBW in NTEH is only one of the possible.options. Other options should be explored, e.g.amending legislation and enhancing lease enforcementactions.(c)Paras. 3.15, 3.18, 3.19 & 3.20 : Great efforts weremade for two years by BD's front-line staff in the twotest cases (mentioned in the report). Much time wasspent on persuading the owners to remove the UBW.Arguing BD's position was necessary in the Land PolicyLiaison Committee/Heung Yee Kok, but the result wasdisappointing. One of the test cases was eventuallyresolved in October 1995 as reported in the DRR. Asregards the second case, the closure order applicationscheduled for 18 January 1996 was cancelled as theowner had started voluntarily to remove the additionalstorey. BD considers that the resources could bebetter utilised elsewhere in pursuit of the objectiveof building safety. The experience gained in thesetwo cases indicates that any success in takingenforcement action in NTEH depends very much upon theco-operation of the owners. They seem, however, to beunder the impression that the Government wouldtolerate UBW in NTEH for historical reasons. BD- 31 -

agrees that much remains to be done in terms of public

(h)Para. 5.2 : It is not certain that with the relocationof many industries to China, the problem^ of ^ industrialuse in residential buildings is diminishing as thetypes of industrial undertakings that take place inresidential buildings are cottage industries that donot, as a rule, relocate to China.(i) Para. 5.6 : With the move towards title registration,the LR would certainly not register a letterindicating there is a breach of lease conditionsagainst the title and legal advice is that it wouldnot be legally appropriate for Lands D to do so.(j) Para. 6.2(a) : Recommendations (1) and (2) areaccepted.(k) Para. 6.2(b) : Recommendations (3) to (6) cannot beaccepted as Lands D cannot spare the staff toundertake the proposed survey at the expense of otherwork.(1) Para. 6.2(c) : Legislation is likely to be necessaryto implement a penalty fine system and this willundoubtedly have staff resources problems for Lands D.(m) Para. 6.2(c)(9) : As stated earlier, this approach isunlikely to be acceptable to the LR.COMMENTS ON THE RESPONSES OF THE SECRETARY FOR PLANNING,ENVIRONMENT AND LANDS, DIRECTOR OF LAND AND DIRECTOR OF BUILDINGS7.6 This Office has carefully considered and taken note ofthe views and comments of SPEL, D of B and D of L. Our commentson the main points raised are as follows -(a) Para. 7.1(a) : This Office considers that this merelyreflects a lack of data, as no comprehensive surveyhas been conducted during the past years to assess thesize and magnitude of the problem. It is furthernoted that before October 1987, no Certificates ofExemption were required for building NTEH. In thisreport, this Office has cited the results of samplesurveys conducted by some DLOs which indicated aproliferation and aggravation of the problem. This isalso evidenced in the correspondence of some DLOswhich stated that "the UBW problem in this districtis enormous' and "due to the proliferation ofunauthorised construction works in NTEH in hisdistrict....." which the 10 noted during the course ofinvestigation. This Office also notes that it isSPEL's short term objective to ensure public safetyand containment of the problem of UBW in respect ofboth NTEH and urban buildings. This Office considers- 33 -

that this short term objective has not been fullyachieved. The problem of UBW in NTEH is not beingcontained, as evidenced by the observations in thisreport and D of L's comments regarding Lands D'sinability to deal with UBW, due mainly to lack ofstaff resources. This Office therefore maintains theview that there should be a firm commitment anddetermination on the part of the Government to workout a positive plan to tackle the problems of UBW.(b) Para. 7.1(e) & 7*1(£) : This Office finds SPEL'sstatement "it is unlikely that additional resourcewould be given to lease enforcement duties..."preemptive, in the light of his agreement on theusefulness of a sampling survey and subject to thesurvey results, to formulate the policy and proceduresaccordingly. This Office accepts that procedure maybe streamlined but there are bound to be limits on howmuch could be achieved through streamlining and thequestion of additional resources cannot be ignored.(c) Para. 7.1(g) : This Office fully agrees that newlegislation may be required. The concerns* raisedconcerning operational and procedural details shouldbe considered in the context of the feasibility studyas recommended.(d) Para. 7.3(b) : This Office accepts D of B's view thatreferring UBW cases to BD is one of the options totackle the problem. It is a matter for the concerneddepartments to work out in a co-ordinated andconcerted manner.(e) Para. 7.5(b) & 7.5(f) : Despite Lands D's periodicreview of the priorities set by ExCo in 1975, the factremains that lease enforcement against UBW in NTEH isstill accorded a relatively low priority and based onthe observation mentioned in para. 7.6(a), problem isnot being contained. At tjie time of investigation,according to Lands Instructions K-l issued by theLands D, the priority accorded to "unauthorisedadditions to buildings etc..". was ' (h) ', i.e., of arelatively lower priority than seven other categories.This Office maintains the view that a fundamental andcomprehensive review of the priorities should ^beconducted by the Administration, as the existingpriorities were set at a time when socio-economicconditions were quite different from circumstances asthey exist to-day to avoid unfair treatment to many.(f)Para 7.5 (c) ; During site visits to one of the DLOs,this Office noted from the records that in clearingone of the villages of UBW, GC actions had to becalled off due to lack of funds. The same impressionwas received during our discussions with the DLOstaff. This Office welcomes the D of L's commitment- 34 -

(g)(h)that more resources could be made available ifnecessary for GC actions.Para. 7.5(g) : The statement that the teams are, as awhole, up to strength was based on informationsupplied by different DLOs. Collectively, thestrength of all teams in NT DLOs was 37 (excludingSLEs) and this was up to the total establishment. Thefact that some of them were redeployed to, performother duties is of course entirely a matter for D ofL but this further strengthens the point made in thereport that the resources for enforcement against UBWin NTEH are very thinned out*Para. 7.5(h) : It is a general observation that, sincemany industries have been relocated to China, it, islikely that the problem of industrial undertaking inresidential or non-industrial buildings may havediminished and therefore the priorities for leaseenforcement work should be reviewed to take intoaccount these circumstantial changes. In order toappraise the situation more precisely andconclusively, a review is therefore recommended.(i) Paras. 7.5(i) & 7.5(m) : This Office is of the view,as shared by SPEL, that Lands D should consistentlyapply the registration of breaches throughout theDLOs. This Office notes the possible discontinuationof the present practice of registration due tolegislative changes. As the registration isconsidered one of the effective measures to deter UBW,as it will create an incumbrance on the title, it willbe a set-back for enforcement agencies and adiminution of the already few measures available todeter UBW. While reinforcing this Office'srecommendation for suitable punitive measures to beintroduced to deter offenders, it will be a matter forthe Administration to consider in the overall contextof legislative amendments.(j) Para. 7.5(k) : This Office notes that D of L wasunable to accept the recommendations therein due tostaff shortage. In line with this Office'srecommendation that Lands D should cause a samplingsurvey to be conducted, Lands D could considercommissioning out the job.FINAL OBSERVATIONS7 ; 7 In brief, this Office does not consider that thefindings, conclusions and recommendations of this report need tobe changed.^ This Office would like to be kept informed by theAdministration in due course on the implementation of therecommendations and any changes in the policy concerninq UBW inNTEH. • » •- 35 -•

Annex IDimensions for Hew Building for Non-industrial or Community Use(a) The building, when constructed, will be abuilding of not more than 3 storeys and -(1) of a height of more than 7.62 m but not morethan 8.23 m and with a roofed-over area notexceeding 65.03 m 2 , and in respect of whichthe thickness of each load-bearing wall -(i) in the case of a load-bearingreinforced concrete wall is not lessthan 175 mm thick; or(ii) of the lowest storey is in the case ofa load-bearing brick wall not less than340 mm; and(iii)of any higher storey is, in the case ofa load-bearing brick wall, not lessthan 225 mm; or(2) of a height of not more than 7.62 m -(i)with a roofed-over area not exceeding92.90 m 2 where the building complieswith approved plans; or

(ii) with a roofed-over area not exceeding65.03 square m 2 .Height means the perpendicular height of thebuilding measured from the level of the lowestpoint at ground level to the level of the highestpoint of its roof excluding -(i) one stairhood if it has a roof area ofnot more than 7.44 m 2 , a height of notmore than 2.14 m and is erected andused solely to provide protection fromrain and sun for a stairway to gainaccess to the roof of the building;(ii) any parapet on the roof if the heightis not more than 1.22 m;(iii)one water storage tank if it has a roofarea of not more than 2 m 2 , a height ofnot more than 1.22 m and is installedat any point of the roof other than onthe stairhood.(b) "Approved plans" means plans prepared by theD of L or plans so prepared and modified with hisconsent.

Annex IIDistrict Lands Office(i)MembershipDistrict Lands Officer(Chairman)District Officer or his representativeDistrict Planning Officer or his representativeDistrict Senior Estate SurveyorChief Land ExecutiveSenior Land Executive(Secretary)In attendanceRepresentatives from other interested departments such asTerritory Development Department, Regional ServicesDepartment, Water Supplies Department, EnvironmentalProtection Department and Agriculture and FisheriesDepartment at the discretion of the Chairman.(ii) Terms of ReferenceTo consider in the light of the Small House Policy andland management directives pursuant to Rural PlanningImprovement Strategy (RPIS) Implementation :-(a) Applications for small house grants.(b) Modifications to existing small house lots, smallhouse exchanges and other NTEH exchanges at thediscretion of DLO/CES/NA.(c) Breaches of conditions and non-compliance with HealthRequirements.(d)Redevelopment of old schedule house lots/NTEHs.(e) Temporary Licence extensions for industrial and otheruses likely to be sources of pollution.(f)On-Farm Domestic Structures proposals.(g) Rebuilding of Surveyed Domestic Structures.(h)Straight forward S.T.T. garden tenancies.(i) Any other matters concerning small house grants anddevelopments.tC/I{A}G01\ANNEX-XII

Annex IIIRe-entry/Vesting ProcedureDetection/ReferralInspection & report (with photo)byTi4Agreement on actionable caseSLE to seek DLO's agreement4Seek approval from HQ toproceed with lease enforcement actionApproval from HQby QLA/LaMReceipt ofForbearance FeeAcct. OfficeBreach purged,\n.f.a.letterby SLECLE/Control informed1st warning letter.4Re-inspection and report(with photo) after *28' daysor expiry of warning(forbearance) periodFinal '14/7*4 da^s warning lettervetted by SLE and signed by DLO4Final inspection& report (with photo)4Preparation of Instrument ofRe-entry or Vesting Notice, theassociated memorialand draft GNprepared by LE and checked by SLEInform CLE/Controlof breach purgedby SLE# Signing of Instrument ofRe-entry and Vesting ^ Notice andassociated Memorialdocuments vetted by RG(LO), andsigned by PGLAGazetting ofby Control Section, HQRegistration of the Re-entry/Vesting documents" by RG(LO)Landowner informedof Reentry/Vestingby RG(LO) &** Control Section, HQ* for recurrent cases only** for non-payment of premium instalment cases only[C/I (A) 001/ANNE-III .doc)

EXECUTIVE SUMMARYINVESTIGATION REPORT ONUNAUTHORISED BUILDING WORKS INNEW TERRITORIES EXEMPTED HOUSES1 Introduction1.1A direct investigation had previously been conductedon the Buildings Department's (BD's) enforcement action againstunauthorised building works (UBW). One of the concerns expressedin the investigation report was the existence of UBW in villagehouses in the New Territories (NT) . In view of the prima facieevidence of proliferation and aggravation of this problem, theCommissioner decided to conduct a direct investigation underSection 7(1) (b) of the Commissioner for Administrative ComplaintsOrdinance on the enforcement procedures and actions by LandsDepartment (Lands D) and BD against UBW in NT exempted houses(NTEH) with a view to establishing if -• the existing procedures are adequate and effective;andthey are being carried out consistently by theDistrict Land Offices (DLOs).2Background2.1 Under the Buildings Ordinance (Cap. 123) all buildingworks carried out without the approval and consent of theBuilding Authority (BA), i.e. the Director of Buildings (D of B)are UBW, except some minor exempted works. However, theBuildings Ordinance (Application to the New Territories)Ordinance (Cap. 121) empowers the Director of Lands (D of L) toissue Certificates of Exemption in respect of. certain buildingworks, site formation works and drainage works in the NT ^ forcertain types of buildings, mainly those for non-industrial,community or agricultural uses or for replacement of temporarystructures.2.2 Builders of NTEH are exempted from the requirement toappoint an authorised person (AP) and a registered contractor,seek approval from the BA for commencement of works, constructionof drainage works and access to a street and issue of anOccupation Permit. Broadly speaking, NTEHs comprise of SmallHouses (SH-) built on land granted under the NT Small House (NTSH)Policy introduced in 1972 and houses built on land granted

- 2 -outside the scope of the NTSH policy but are built in accordanceto the specifications of a NTEH. As at June 1995, 17 736 SHshave been approved in the nine districts in the NT.2.3 There are certain restrictions imposed on the size ofa NTEH, depending on its type and usage. Basically, a NTEHshould not be more than three storeys high with a restriction onheight, roofed-over area, size of stairhood, parapet and waterstorage tank etc.2.4 UBW found in NTEH varies in size, form and shape.^ Themore common ones are additional storeys, ground floor extensions,enclosed rooftops, balconies and canopies etc. For newbuildings, most of the UBW are related to excessive built-overarea, height, size of stairhood, width of balcony and overhang.3 Lease Enforcement3.1 With reference to the policy endorsed by the ExecutiveCouncil on 30 December 1975, the lease enforcement action inrespect of UBW had been accorded a relatively low priority amongunauthorised uses of buildings. The authority to enforce thelease conditions is generally implied within the terms of thelease agreement while the Crown Land Ordinance (Cap. 28) and theCrown Rights (Re-entry and Vesting Remedies) Ordinance (Cap. 126)confer explicit powers upon the D of L to take appropriate leaseenforcement actions, including re-entry and vesting actions.3.2 Lease enforcement actions normally arise when nonconforminguses are detected through either patrols by DLO staff,complaints from the public, referrals from other governmentdepartments or reports by the lessee/licensee of leased land/landoccupied under a license.3.3 In taking lease enforcement actions, Lands D willnormally visit the site and after confirmation of the site plan,request the Land Registry (LR) for ownership and other relevantdetails and serve a warning letter on the owner. A final warningletter will be issued if the UBW has not been removed within thetime stipulated. If the UBW is still not rectified, a Crown LandNotice will be issued and if the owner continues to ignore theNotice after expiry of the deadline, the Government Contractor•(GC) will be called in to demolish the UBW and the owner willhave to bear the cost. However, GCs are seldom employedprimarily for lack of funds. So are the re-entry actions which,although effective, are time consuming and resource extensive.3.4 In respect of minor breaches of the developmentconditions contained in small house grants, Lands D can exerciseits power under the lease conditions and impose penalty fines.Such penalty is a fee in respect of the Government's forbearanceto take action for the lifetime of that particular building

- 3 -rather than a premium for modification of the Conditions of theGrant.3.5 The Lands D does not have comprehensive details on thesize of the UBW problem in NTEH. However, results of samplesurveys conducted by some DLOs confirm the concern of this Officethat the UBW problem in NT is proliferating and aggravating.3.6 The Lands D sometimes refer some UBW cases in NTEH toBD for further action under the Buildings Ordinance (BO) mainlybecause the breaches are in contravention of the BuildingsOrdinance; or that enforcement action under the lease conditionis considered impracticable; or the demolition of the UBW wouldbe more suitably handled by the BD for safety, technical andother reasons.3.7 Normally, UBW in NTEH will not be accorded a highpriority for enforcement under the 1988 Policy on UBW. BD'sactions so far in this respect have met with great difficultiesand resistance from the villagers and the results have not beenencouraging.4 Problems in Enforcement4.1 Under existing legislations, Lands D can require theowners to remove the UBW or in default, call in the GC to removethem. However, this is seldom done due to resource constraint.The only avenue remaining is for Lands D to take re-en try/vest ingactions to re-possess the land and the premises thereon. Thisseems extremely harsh if the contravention poses no immediatedanger to the public. The process is also cumbersome and timeconsuming. The worst scenario for an owner of UBW is forcedremoval at one's own cost and the law does not provide extrapenalties for persistent and/or repeated breaches.4.2 Due to the relatively low priority accorded under thepresent policy, Lands D often channel its resources to moreurgent tasks like resumption of land for development purposes andprocessing SH applications etc.4.3 In the Lands D, most DLOs have at- least one LeaseEnforcement Team and the total team strength for each districtranges from three to seven. Lease enforcement against UBW isonly one of the responsibilities of the teams, which have to^dealwith an estimated average of some two thousand UBW cases withineach district. BD has five similar teams for the NT but theirtotal strength is only eight. Having regard to their extensivegeographical area of responsibility and the abundance of UBW andother enforcement problems in the NT, the total resourcesallocated for lease enforcement appear very thinned out.4.4 Many villagers hold a wrong perception that they do not

- 4 -need Government approval for rebuilding their old village housesas long as these are for their own occupation and cases havedemonstrated their blatant disregard of the restrictions placedon NTEH. They often adopt an antagonistic attitude when theconcerned departments attempt to take enforcement actions andpolice assistance is sometimes required.5 Overall Observations and Findings5.1 This Office notes that Lands D had set its priority forlease enforcement according to the policy endorsed by theExecutive Council in 1975 under which a high priority wasaccorded to enforcement against dangerous and obnoxiousindustrial undertakings in residential and non-industrialbuildings. With the gradual transformation of Hong Kong'smainstream industry from manufacturing to service-orientedindustry since 1975, a significant number of local industrialundertakings had been relocated to China. It seems timely, after20 years, for the Administration to revisit the 1975 policy witha view to reassessing the relative priorities for leaseenforcement. If after review, the Administration concedes thatlease enforcement against UBW should be accorded a higherpriority, appropriate resources should then be accorded to thedepartments concerned to more effectively and proactively dealwith the problem. Resource constraints apart, this Office stillmaintains the view expressed in the earlier report on theinvestigation of UBW that there should be a firm commitment anddetermination on the part of the Government to work out apositive plan to tackle the problem.5.2 Currently there is a lack of suitable and effectivemeasures that Lands D can take to deter the violation of therestrictions on the NTEH. This Office considers that the LandsD should be able to administer suitable punitive measures, suchas adopting an equitable penalty scheme, to deter such breaches.Another effective determent may be the registration of theadvisory letter against the property title at the Land Registrar,a practice that should be consistently adopted by all DLOs.5.3 Having reviewed the staffing resources allocated by thedifferent DLOs on lease enforcement in relation to the size andnumber of villages in each district and the extent of the UBWproblem, the overall resources for lease enforcement actions doesappear to be totally inadequate. Proper patrol programmes willbe effective in detecting and controlling the proliferation ofUBW in villages but in view of the scattered locations ofexempted houses and vast area to be covered, such programmes arebound to be resource intensive.5.4 When UBW are detected, there is a need for the

- 5 -Government to take enforcement actions quickly and decisively.Slow progress are not only demoralising to the staff but couldalso be construed by owners as tacit approval and toleration byGovernment of the UBW. There does not appear to be any validreason for not providing adequate funding for GC actions, giventhat the owners of UBW would finally bear the cost.5.5 Having reviewed the procedures in handling enquiriesand complaints on UBW, this Office considers that they arepresently adequate and no apparent delay was evident.Conclusions and Recommendations6.1 This Office therefore draws the following overallconclusions -• there is a proliferation of UBW in NTEH and theproblem continues to grow;• quite a few of the UBW cases display a blatantdisregard of the restrictions placed on NTEH;• it is relatively difficult to detect UBW in NTEH dueto the scattered locations of the villages;• it is possible to put up NTEHs without first obtainingthe requisite certificates from the DLOs as thequestion of transaction arises relativelyinfrequently;• there is at present no effective deterrent measureagainst UBW in NTEH; and• the lack of priority and adequate resources havecontributed to the proliferation of the problem.6.2 This Office has the -following recommendations forconsideration by the Administration -Those relating to existing priorities and procedures1 The Administration should review the presentpriorities accorded to the enforcement against UBW inthe NT in the light of circumstantial changes since1975 to determine whether those UBW in NT not yetacted upon should continue to be tolerated.2 Lands D should review its procedures for submittingrecommendations on lease enforcement against UBW tothe District Lands Officer or the DLOC with a view toworking out a uniform and consistent approach for all

DLOs.- 6 -Those relating to assessment of the problem and resources3 Lands D should cause a sampling survey to be conductedto assess the magnitude and seriousness of the UBWproblem in NTEH in each district.4 Based on the survey findings, Lands D and BD, inconsultation with the Secretary for Planning,Environment and Lands, should formulate theappropriate policy and procedures to tackle theproblem.5 Lands D and BD should then assess the resourcesrequired to effectively and efficiently carry outthese policies and procedures.6 Additional resources should be sought if existingresources proved inadequate for enforcement againstUBW in NTEH, including GC actions.Those relating to enforcement and public co-operation7 Lands D should explore the feasibility of introducingan equitable penalty system, after consultation withrelevant bodies in the NT such as the DBs, the HeungYee Kok and the RCs. Lands D should also consult theAttorney General's Chambers (AGC) on the need forcorresponding legislative amendments.8 Lands D should solicit the assistance of the DBs, theHeung Yee Kok and the RCs in publicizing Government'sposition on UBW in NTEH.9 Lands D should consistently apply the practice ofregistration of breaches against the titles ofproperties throughout the DLOs.Final RemarksResponse of the Secretary for Planning, Environment and Lands7.1 The main comments of the Secretary for Planning,Environment and Lands (SPEL) are -• there is no conclusive evidence that the UBW problemin NT has proliferated. SPEL's policy is consistent inrespect of NTEH and urban buildings and the objective,

- 7 -in the short term, is one ensuring public safety andcontainment of the problem;• a sample survey will be useful in identifying theproblem but not providing the solution. Subject to thesurvey results, LD and BD should consult SPEL andformulate policy and procedures to tackle the problem;• streamlining^of procedures should be considered ratherthan allocation of additional resources. The use of GCshould be more actively pursued;• new legislation for a penalty system would benecessary although enforcement of such a system wouldbe very difficult; and• recommendations 8 and 9 are agreed.Response of the Director of Buildings7.2 The Director of Buildings (D of B) agrees that theproblems of UBW in NTEH should be addressed and acknowledges themerits in principle of conducting a review. He accepts that theBD should participate in the review. His other main commentsare -• NTEHs built before 16 October 1987 do not requireCertificates of Exemption,;• invoking the BA's power under the Buildings Ordinanceas a remedy for UBW in NTEH is only one of thepossible options. Other options like amendinglegislation and enhanced lease enforcement actionshould be explored; and• experience indicates that the success in enforcementactions depends greatly on the co-operation of theowners and agrees that much needs to be done on publiceducation.Response of the Director of Lands7.3 The Director of Lands (D of L) generally agrees thatthe report has correctly set out the problems the Lands D facein its inability to deal with UBW in NTEH. His major commentsare - • • .• ''• . " •' . " - • • ' ' • • • ' ; • ' • . ••• the priorities set by ExCo in 1975 have been reviewedby the Lands D periodically and the view is that,given staff constraint, substantial changes are notpracticable.• additional funds could be made available to the DLOsfor taking GC actions if required;

- 8 -• lease enforcement against UBW in the NT does not havea lower priority compared to other breaches of leaseconditions;• with the move towards title registration, the LR wouldcertainly not register a letter indicating a breach oflease conditions against the title of property andwould not be legally appropriate to do so.• recommendations 1 and 2 are accepted;• given staff constraints, Lands D cannot spare staff toundertake the survey of UBW in NT; and• legislation is likely to be necessary to implement apenalty system and this will have staff resourcesproblems.Final Remarks7.4 This Office has carefully considered all the pointsmade by the SPEL, D of B and D of L. In response to SPEL's pointthat there is no conclusive evidence of the proliferation of theUBW problem in the NT, this Office considers that this merelyreflects a lack of data, as no comprehensive survey has beenconducted during the past years to assess the size and magnitudeof the problem. It is further noted that before October 1987 noCertificates of Exemption were required for building NTEH. Inthis report, this Office has cited the results of sample surveysconducted by some DLOs which indicated a proliferation andaggravation of the problem. Regarding the proposed survey, thisOffice is fully aware that it cannot provide a solution butconsiders it essential if the Administration is to come to gripwith the problem and formulate suitable policies and measures totackle it. With reference to D of L's reservations on conductingthe survey due to lack of staff resources, this Office is of aview that the D of L should consider having the job commissionedout.7.5 This Office notes that it is SPEL's short termobjective to ensure public safety and containment of the problemof UBW in respect of both NTEH and urban buildings. This Officeconsiders that this short term objective has not been fullyachieved. The problem of UBW in NTEH is not being contained, asevidenced by the observations in this report and D of L'scomments regarding Lands D's inability to deal with UBW, duemainly to lack of staff resources. This Office thereforemaintains the view that there should be a firm commitment anddetermination on the part of the Government to work out apositive plan to tackle the problems of UBW.7.6 Despite Lands D's periodic review of the priorities setby ExCo in 1975, the fact remains that lease enforcement againstUBW in NTEH is still accorded a relatively low priority and theproblem is not being contained. This Office maintains the view

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