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







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

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