Old leases without height restrictions cannot override statutes passed later

PUBLISHED : Friday, 01 July, 2011, 12:00am
UPDATED : Friday, 01 July, 2011, 12:00am


I refer to the recent comments by the Heung Yee Kuk on a possible judicial review regarding the lack of height restrictions on the lots described as 'house' in the Block Crown Leases issued in 1905.

The kuk appears to regard the Block Crown Lease as the only thing governing land use in the New Territories.

How about the Buildings Ordinance (Application to the New Territories), first enacted on January 1, 1961, and further amended on October 16, 1987?

The Development Bureau's discussion paper issued on June 22 reminded everybody that the provisions of the Buildings Ordinance applied to the New Territories as well, even if the Block Crown Lease had no height restrictions.

And then there is the Town Planning Ordinance and its outline zoning plans.

In the notes to the schedule of uses for 'village type developments', there is a clear height restriction of a maximum of three storeys (8.23 metres) for a new development, addition, alteration, modification or redevelopment of an existing building.

There are so-called unrestricted leases on Hong Kong Island and in Kowloon.

However, the landowners there comply with the Buildings Ordinance and Town Planning Ordinance in respect of building heights during development or redevelopment.

They have to, otherwise the building authority will not approve the building plans or give consent to commence construction.

Under the law, a contractual document such as the Block Crown Lease cannot override a statute.

If the kuk and indigenous villagers feel so aggrieved by this legislation, then perhaps they would like to persuade the government and the Legislative Council to repeal such legislation. Or they could perhaps issue a declaration of independence for the New Territories and secede from the People's Republic of China.

As masters of their own country, they would be able to enact any legislation they liked to allow unlimited building heights for their village houses.

Danny Chung, Tai Po