OPTIONS AVAILABLE WHEN SERVED WITH A REMOVAL ORDER
FOR UNAUTHORIZED BUILDING WORKS
From April 2012, the Hong Kong Buildings Department began to enforce new regulations against unauthorized building works (UBW) on New Territories Village Houses, which are also known as New Territories Exempt Houses (NTEH). Under this new policy, high-priority removal targets will consist of UBWs that are in serious contravention of the law, or are seen to be obvious hazards posing imminent danger to life or property. As for UBWs that are deemed to be of the ‘lower risk’ category, the Buildings Department has introduced a voluntary reporting scheme, which grants eligible UBWs a 5 year grace period.
Since the implementation of the new policy, the Buildings Department has issued numerous removal orders. Such enforcement methods demonstrate an absence of proper consideration for affected residents. In an effort to advocate the rights and interests of these people, the N.T. Concern Group hopes to detail, in this paper, the various responsive actions available to owners who are in receipt of a removal order
The Buildings Department may issue, at their discretion, a removal order for UBWs under the statutory authority provided in Section 24(1) of the Buildings Ordinance (Cap. 123). The provision states that an order may be made on the basis that the owners had commenced building works without consent from the Building Authority, or had failed to submit the proper plans and documentations for formal approval. However, the N.T. Concern Group feels that the legal basis of enforcement may not be entirely well-supported, and would like to make the following recommendations.
Upon receipt of an order from the Building Department, the owner should consider – at the first opportunity – the different options available to him / her. The owner may choose to comply with the order by removing the offending UBW within the specified period; or he / she may choose not to remove the offending structure. If the owner chooses not to comply with the order, he / she must then decide whether to appeal the statutory order, or to do nothing. However, if the owner does nothing and fails to demolish the UBW at issue within the specified time, the Building Department may take further action – including the application for a court summons or further legal prosecution.
If the owner wishes to appeal the order, he / she must first lodge an appeal within the statutory period (21 days after the date of notification on the order). This is done by serving a Notice of Appeal directly on the Secretary to the Appeal Tribunal, and also on the Building Authority. Then, the owner must furnish a Statement of Particulars (submitted within 28 days of lodging the appeal notice), which should contain details of the matter at issue and the intended grounds of appeal.
Listed are some potential grounds of appeal:
The Buildings Department derives its authority for issuing orders from Sections 14 and 24(1) in the Buildings Ordinance, which states that consent or approval from the Buildings Authority must be obtained prior to the commencement of any building works. However, this should not be applicable to NTEHs, as they are legally governed by the Building Ordinance (Application to the New Territories) Ordinance (Cap. 121). In this view, it would appear that any non-compliance with existing legislation, such as UBWs, should be governed by Cap. 121. The relevant statutory authority would thus be vested in the Lands Department and not the Building Department.
In other words, the owner may apply to the Lands Department for a Certificate of Exemption in relation to the maintenance or renovation of temporary structures on rooftops. The Director of the Lands Department may then grant such a Certificate through the statutory powers conveyed by Sections 4, 5(a) and (d) of the Building Ordinance (Application to the New Territories) Ordinance (Cap. 121).
The Government has publicly stated that ‘low-risk’ UBWs will not be subject to immediate enforcement under this new policy. This has created a legitimate expectation in owners whose properties are not categorized as high-priority removals. It would be unfair for the Government to now retract upon its promise.
The Buildings Department’s absolute discretion in the enforcement of this matter is, in many ways, a contravention to the fundamental principles of fair and just government.
In conclusion, it is advisable for any owner – when served with a removal order – to carefully consider all the potential consequences of an appeal action before lodging the application.