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Published: 01:56, September 19, 2023 | Updated: 09:38, September 19, 2023
If illegal structures are safe, then legalize them
By Ho Lok-sang
Published:01:56, September 19, 2023 Updated:09:38, September 19, 2023 By Ho Lok-sang

Uproar erupted in the community after it was revealed that a number of houses at the luxury Redhill Peninsula in Tai Tam on the south side of Hong Kong Island had major illegal structures, and some even had illegally occupied public land adjacent to what is recorded on the homes’ land leases.

The illegal-structures issue is very sensitive, as there is a public perception that the Hong Kong Special Administrative Region government has been lax with wealthy or powerful people but strict with ordinary people. People can often refer to the village houses with illegal structures that the government tolerated for years. Carrie Lam Cheng Yuet-ngor, the then-development secretary, told reporters in 2011 that “extra stories added illegally to village houses must come down, with immediate action in serious cases, such as those with an extra story or two or even three.” But nothing really happened, even after she became chief executive.

There is therefore huge pressure on the government to act forcefully this time. The predominant public demand is for the owners to remove the illegal structures. The public will recall that Henry Tang Ying-yen, who was at the time running for chief executive in the 2012 chief executive election, attracted a lot of media attention when his house in Kowloon Tong was discovered to have had an illegally excavated basement. In the end, the illegal basement was refilled in March 2013, and Tang’s wife was fined HK$110,000 ($14,050) for building an illegal basement.

I would argue that the government should ask owners to certify the safety of these (illegal) structures with the signature of an authorized person (architect or structural engineer). If the structures were deemed to be safe, they would be legalized with the payment of a fine, to reflect the fact that the work was done without going through the proper process

In my view, the outcome of Tang’s illegal-structure case was not the best. Although it did lend authority to the law, the law is nevertheless not uniformly enforced, and people would say that the government’s action in this case was dictated by the circumstances. There was just too much media attention, so the government had to do something. But the government has not taken action on many other cases.

Actually, the government had not taken action on the thousands of village houses for a good reason. Requiring the owners to remove all the illegal structures would mean thousands of families might have to be evicted. Many of the added stories were rented out. Rehousing these families would be a logistical headache and would aggravate the housing shortage. Yet no action would tarnish the authority of the law.

I would argue that the government should ask owners to certify the safety of these structures with the signature of an authorized person (architect or structural engineer). If the structures were deemed to be safe, they would be legalized with the payment of a fine, to reflect the fact that the work was done without going through the proper process. In addition, the owner would be asked to repay any rates owing due to undervaluation of the property. If there were illegal occupation of public land, the government would ask for payment of land rent owing, and the owner would be advised that the government can take back the land anytime at its discretion.

In the event that an illegal structure had jeopardized public safety, or, even more seriously, had a role in causing the landslide as happened in the case of the Redhill Peninsula incident, the owners of course would have to be responsible for restoring the slope to a safe condition, and be subject to a fine.

Today, the HKSAR government is facing rather stern fiscal conditions. Our revenues are falling while the demand for increasing government spending remains strong. Legalizing safe illegal structures will bring in much-needed revenue. At the same time, this is also likely to be the most environmentally friendly thing to do. Although requiring the owners to restore the buildings to what they were like before the illegal structures were built sounds reasonable enough, it would be, in general, environmentally costly. The owners may also be hurt more, but this is not necessarily the case. Much depends on the size of the fine and the cost of the certification.

If the owners could not find an authorized person to certify the structure safe, the owners would have to remove the illegal structures.

I understand that some houses may have a tiny strip of adjacent public land that cannot be utilized by the government because there is no access and/or because the strip is too small for development. In these cases, the government may give the owner the option of acquiring the public land at an appraised value or leasing it from the government.

Chief Executive John Lee Ka-chiu told reporters that authorities must be “pragmatic” with respect to the illegal-structures problem. He is right. We understand that the Buildings Department has a lot of work to do. It may not be feasible to have each property inspected. But it is feasible to have inspections on randomly picked properties. I would suggest that property owners be advised that they have the option to legalize their illegal structures within a time frame on the condition that they are certified safe every 10 years. (No architect or structural engineer will do the certification if the safety certificate is not over a specified period). If they do not act within the time frame, then they will face a large fine as well as mandatory removal of the illegal structures. The fine should reflect the benefits the owners have derived from the illegal structures, as well as a punitive element that would provide sufficient deterrence to illegal structures.

The author is director of the Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University. 

The views do not necessarily reflect those of China Daily.

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