英文

下一篇

Editorial﹕Ruling on small houses: now the ball is in the government's court

【明報專訊】HEARING an unprecedented court case demanding judicial review of the New Territories indigenous villagers' right to build small houses, the High Court has ruled partially in favour of the applicants. This ruling, which carries important clarifications on what is meant by the "lawful traditional rights and interests of the New Territories indigenous inhabitants", upholds only the right that these villagers can exercise to build small houses on private land. This implies that the government does not have an obligation to reserve government land for indigenous villagers to build small houses. Although the ruling has not solved the string of problems that stemmed from the Small House Policy or boosted land supply for society dramatically, it has at least provided an important vantage point for tackling the small house controversy.

The Small House Policy, which began in 1972, was originally aimed at improving the poor living conditions in villages inhabited by indigenous residents and enhancing the hygienic standards of rural housing. It was also a strategy pursued in accordance with the development of new towns. However, shortly after its implementation, the British colonial government found serious abuse of the policy. As the policy allowed indigenous villagers to build and sell small houses, it was nothing but an extremely lucrative business for which no capital was needed. Some of the small houses were resold even before their completion. Back then even British colonial government officials described small house licences as "money-spinning licences", recognising the need to clarify the policy. What was unexpected, however, was that the issue would drag on for decades and remain unhandled.

Land in Hong Kong is limited, while the multiplication of the entitlements to build small houses is not. As of September 2017, the government had altogether approved 42,000 applications for the building of small houses. Just the past ten years has seen the massive increase in the land used for the building of small houses under "village-type development" by more than 200 hectares. Some indigenous villagers even sold, illegally, their rights to build small houses. Given the rapid urbanisation of Hong Kong, small houses should have disappeared, and it is impossible for the government to satisfy indigenous villagers' limitless demand for small houses. What is more, it has a responsibility to curb the abuse of small houses. Nearly half a century after the introduction of the Small House Policy, it is time for the government to carry out radical reform and put everything to rights. The judicial review should be the starting point of the reform.

At the heart of the controversy of the rights to build small houses are two issues. The first is whether the right to build small houses is a "lawful traditional right and interest" enjoyed by indigenous residents of the New Territories. The second is the issue of the abuse of such rights. The ruling of the High Court has to do with the first issue. Currently there are three ways by which indigenous villagers can exercise their rights to build small houses. As pointed out in the judgement, over a century ago the British colonial government already put in place policies that allowed indigenous villagers to build small houses on the agricultural land that they owned. Nowadays these people can seek to build small houses on their land by applying for a Free Building Licence, and this is regarded as a "lawful traditional right and interest". However, the other two rights, namely the rights to build small houses through Private Treaty Grant and Exchange, have been ruled not to be traditional rights and interests protected by article 40 of the Basic Law.

Currently there are around 630 villages inhabited by indigenous villagers in Hong Kong. Unless indigenous villagers have found a way to expand the area of land zoned for small houses without limits, sooner or later the exercise of small house rights will come to an end. The crux of the matter is whether the government has the political will to end the practice and stop the land allocated for small houses from expanding any further.

明報社評2019.04.09﹕高院釐清丁權定義 遏阻濫用責在政府

首宗挑戰新界原居民丁權司法覆核案,高等法院裁定申請人部分勝訴。今次裁決對於何謂「原居民合法傳統權益」,有重要澄清,原居民只能在私人土地行使丁權建屋,意味政府並無義務預留官地讓原居民興建丁屋。裁決雖然未能解決丁屋政策衍生的連串問題,亦無法一下子為社會大增土地供應,然而至少為處理丁權爭議提供了重要立足點。

丁屋政策始於1972年,原意是改善原居民村落居住環境欠佳,希望提高鄉郊住屋衛生標準,同時亦是配合新市鎮發展的策略,然而政策實施不久,港英政府已發現丁屋濫用情况嚴重。丁屋政策容許原居民興建及出售丁屋,對於部分新界鄉紳來說,儼如一門無本生利的大生意,部分丁屋尚未落成已經轉售,就連當年港英官員亦形容,丁屋牌照儼如「印銀紙牌照」,有需要盡快釐清政策,未料丁屋問題一拖數十年,遲遲未見處理。

香港土地有限,丁權卻是無限。截至2017年9月,政府合共批准了4.2萬宗丁屋興建申請,過去短短10年,用以興建丁屋的「鄉村式發展」土地面積,急增超過200公頃,有原居民還將自己的建屋權,違法賣予他人,即所謂「套丁」。隨着香港城市化,丁屋理應逐漸消失,政府不可能無止境滿足原居民對丁屋的需求,更有責任遏止濫用丁權情况。丁屋政策推行接近半世紀,政府是時候大刀闊斧改革,全面糾正亂象,今次丁權司法覆核案,應當是這場改革的起點。

丁權爭議核心有二,一是丁權是否新界原居民「合法傳統權益」,二是濫用丁權問題。高院裁決所針對的,是第一個問題。目前原居民有三種行使丁權途徑,高院判辭指出,百多年前,港英政府已有政策容許原居民在自己農地建屋,現在原居民透過申請「免費建屋牌照」,在自己土地興建丁屋,屬於「合法傳統權益」,可是另外兩種行使丁權方式,即透過「私人土地契約」或「土地交換」在官地興建丁屋,卻不可視為傳統權益,不受《基本法》第40條保障。

現時全港約有630條原居民鄉村,除非原居民有法子不斷擴張丁屋用地範圍,否則行使丁權總有盡時,問題在於政府是否有政治決心落閘,不再容許丁屋用地範圍擴大。

■Glossary

indigenous﹕belonging to a particular place rather than coming to it from somewhere else

vantage point﹕a position from which you watch sth; a point in time or a situation from which you consider sth, especially the past

zone﹕to keep an area of land to be used for a particular purpose

上 / 下一篇新聞