LCQ22: Illegal structures on private land for residential purposes
Following is a question by the Hon Wu Chi-wai and a written reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today (March 26):
It has been reported that in recent years, quite a number of people have, without authorisation, illegally built residential structures on government lands or private lands zoned for agricultural or open storage uses, or placed containers on these sites and converted them into container houses for residential use (illegal housing). Some local people have relayed to me that such cases have not been handled effectively due to the unclear delineation and shirking of responsibilities among the various law enforcement departments (including the Lands Department (LandsD), Planning Department (PlanD) and Buildings Department (BD)) involved. It is learnt that the final outcome of handling of most of the cases was that LandsD merely registered the removal orders as encumbrances in the relevant land ownership history at the Land Registry (commonly known as "imposing an encumbrance"). In this connection, will the Government inform this Council:
(1) of the respective numbers of complaints about illegal housing on private lands found to be substantiated by LandsD, PlanD and BD in each of the past five years, together with the numbers of cases in which the persons involved were prosecuted and convicted as well as the details of such cases, and set out a breakdown by District Council district in tables of the same format as the following table;
Name of government department: LandsD/PlanD/BD
(a)* (b)* (c)* (d)*
---- ---- ---- ----
(a)* District Council district
(c)* No. of complaints found to be substantiated
(d)* No. and details of the cases in which the persons involved were prosecuted and convicted
(2) of the number of removal orders issued by BD under the Buildings Ordinance (Cap. 123) for illegal housing on private lands in the past five years; the respective numbers of such orders which were and which were not complied with upon expiry of the specified periods; the follow-up actions taken by the authorities against landowners or occupants who had not complied with the removal orders;
(3) of the number of occasions on which LandsD imposed encumbrances against illegal housing on private lands in the past five years; whether LandsD has reviewed the effectiveness of imposition of encumbrances, and referred such cases to BD for follow-up; if it has, of the number of cases so referred each year;
(4) whether it has uncovered any case in the past five years about container houses built on government lands and on lands granted on short-term tenancies by the Government; if it has, of the details;
(5) given that some container houses were erected on private agricultural lands held under Block Government Leases but the landowners concerned claimed that the containers were for storage and non-residential purposes so as to circumvent regulation, whether it has assessed the impact of the court judgments of the two cases in the 1980s (namely Attorney General v Melhado Investment Ltd.  HKLR 327 and Winfat Enterprise (HK) Co. Ltd. v Attorney General  HKCU 261) on the regulation of private lands in the New Territories for agricultural use; if it has, of the details, and whether it will amend the relevant legislation; and
(6) whether the Development Bureau will, in collaboration with the government departments concerned, review the effectiveness of the relevant legislation in curbing the aforesaid illegal activities; if it will, of the details?
Under the current land administration policy, the Lands Department (LandsD) takes land control action against unauthorised structures on government land under the Land (Miscellaneous Provisions) Ordinance, Cap. 28, and takes lease enforcement action against structures (including containers converted to residential use) erected on private land which are in breach of the lease.
Under the established squatter control policy, only structures which were covered and assigned survey numbers in the territory-wide Squatter Control Survey in 1982 (generally called "surveyed structures") are, subject to fulfilment of the promulgated criteria, tolerated until they cease to exist or are required to be cleared for development, environmental improvement or safety reasons.
The cases cited in the question mostly involve old scheduled agricultural lots in the New Territories which, according to the leases, do not permit erection of structures without prior approval. For the purpose of this reply, structures erected thereon, unless falling under the category of surveyed structures or erected with prior permission under the lease, are structures in breach of lease and are collectively referred to as "unauthorised structures on private agricultural land".
For this kind of unauthorised structures on private agricultural land, lease enforcement actions taken by LandsD include issue of warning letters to lot owners; registration of the warning letters in respect of the private agricultural lot concerned at the Land Registry (generally called "imposing an encumbrance"), and consideration of exercising the right of re-entering the private agricultural land concerned under the Government Rights (Re-entry and Vesting Remedies) Ordinance, Cap. 126. In the past, LandsD's enforcement actions generally halted at "imposing an encumbrance", with the right of re-entering the land reserved.
LandsD has earlier reviewed the situation, and it considered "imposing an encumbrance" not a hard enough push factor for rectification of breaches when the concerned lot owners of agricultural land are not keen to assign the land. Furthermore, it is also important to nip the problem in the bud by taking speedy action against the structures when they are being erected. Upon review, LandsD will step up enforcement actions by its existing authority under private lease (as private landlord) and/or under the existing legislation. Specifically –
(a) Once it has come to LandsD's attention through stepped up patrol or receipt of complaints or referrals that an unauthorised structure is being erected on private agricultural land, a warning letter will be issued requiring the lot owner to stop the works and to demolish any uncompleted structures on site within one week. If the lot owner fails to comply, LandsD will proceed with demolition under the Land (Miscellaneous Provisions) Ordinance with a view to demolishing such structures before completion of the works and occupation of the structures, while the relevant costs will be recovered from the lot owners. If the structures being erected are of larger dimensions (which normally means structures of area and height exceeding that of a New Territories Exempted House), the Buildings Department (BD) will take corresponding enforcement actions under its regulatory regime according to the established division of work among government departments;
(b) For unauthorised structures on private agricultural land which have been completed and where the breach is not purged despite "imposing an encumbrance", LandsD will, as a standard practice, proceed with re-entry of the private agricultural land, under the lease and the Government Rights (Re-entry and Vesting Remedies) Ordinance. After re-entry, LandsD will give a reasonable time for occupants remaining on the lot (which has become government land) to vacate themselves, and thereafter arrange demolition of the structures in accordance with the Land (Miscellaneous Provisions) Ordinance. In case the ex-owner of the private agricultural land seeks relief against re-entry under the Government Rights (Re-entry and Vesting Remedies) Ordinance, the Government may impose such conditions as it deems appropriate (e.g. demolition of the unauthorised structure) if relief is granted. Depending on the caseload to be dealt with at any one time, individual District Lands Office may have to prioritise the cases. Factors to be considered in prioritisation may include the scale and gravity of the breaches as well as the potential hazards to the environment and hygiene;
(c) As an ancillary and supporting measure to enhance the effectiveness in identifying unauthorised building works in progress, new patrol routes will be plotted and frequency of air surveillance will be increased by LandsD, focusing on areas prone to new cases; and
(d) Where it is suspected that estate agents may have been involved in the sale or rental of unauthorised structures, including individual units therein, LandsD will refer such cases to the Estate Agents Authority for follow up action.
My reply to the various parts of the question is as follows:
(1) The number of substantiated cases of unauthorised structures on private agricultural land (including structures for residential and non-residential uses) identified through complaints received by LandsD in the past five years (2009-2013), broken down by District Lands Office, is at Annex 1. As there may be more than one complaint against one case of unauthorised structures on private agricultural land, the information is provided on a case basis. LandsD does not maintain a breakdown of cases by District Council constituencies.
For the number of complaints received and confirmed by the Planning Department (PlanD) as suspected unauthorised domestic use in structure under the Town Planning Ordinance (Cap. 131) in the past five years (2009-2013), the breakdown by District Council constituencies is at Annex 2.
The statistics on the numbers of removal orders issued and prosecutions instigated for non-compliance with removal orders by the Buildings Department (BD) in the past five years (from 2009 to 2013) in relation to unauthorised building works (UBWs) (including both domestic and non-domestic use) carried out on private land in the New Territories (NT) that do not involve buildings with occupation permits issued under the Buildings Ordinance, broken down by District Council constituencies, are at Annex 3.
(2) Upon receipt of complaints and reports about UBWs in NT, BD will carry out investigation and, in accordance with the prevailing enforcement policy, take enforcement action against UBWs which constitute obvious hazard or imminent danger to life or property, UBWs in progress and newly built UBWs. Of the 1 550 removal orders associated with part (1) of the reply, 631 orders have been complied with.
Where an owner fails to comply with a removal order, BD would issue a warning letter urging the owner to comply with the removal order voluntarily before instigation of prosecution by BD. If the owner encounters genuine difficulties in arranging the works, BD could, subject to the justifications of individual cases, grant extension of time for compliance with the removal order so as to allow more time for the owner to arrange demolition. If the owner fails to comply with the requirements of a removal order without reasonable excuse, BD would consider instigating prosecution and engaging government contractor to carry out the necessary works in default of the owner. BD would recover the costs of the works, including supervision charges and surcharges, from the owner.
(3) If it is established that the structures (including structures used for residential purpose) are erected on private agricultural land without prior approval under lease, LandsD will take lease enforcement action by issuing a warning letter. If the breach is not purged by a prescribed deadline, the warning letter will be registered resulting in "an imposition of an encumbrance". In addition, the District Lands Offices will refer any established cases of unauthorised structures to BD for consideration of follow-up action under the latter's purview. For cases involving "imposition of encumbrances" against unauthorised structures on private agricultural land by LandsD in the past five years (2009-2013), please refer to Annex 4. Unauthorised structures may be used for residential or non-residential purpose, LandsD does not have a breakdown of the number of unauthorised structures by users.
(4) Over the past five years (2009-2013), LandsD received three cases concerning container structures erected on government land for residential purpose, two in Yuen Long and one in Tsing Yi. District Lands Office/Yuen Long has taken land control actions and cleared the unauthorised structures in the two cases. For the remaining case in Tsing Yi, appropriate land control action will be taken by District Lands Office/Tsuen Wan and Kwai Tsing. In the past five years, LandsD has not come across any case in which container structures for residential purpose are erected on land granted by way of short term tenancy.
(5) Regarding regulation of container-converted residential units on private agricultural land held under block government lease, such converted containers are generally considered by LandsD as "structures", the unauthorised erection of which will constitute a breach of lease conditions. LandsD will take appropriate lease enforcement actions against such cases having regard to the actual circumstances. Land leases are concluded between the Government in the capacity of a landlord and the land owner, and no legislation is involved.
(6) As regards the arrangements on strengthening enforcement and regulatory work, please refer to the main reply above.
Ends/Wednesday, March 26, 2014
Issued at HKT 14:58