No legal barrier to making 'small houses' bigger, HKU law dean says

HKU law dean says there are no legal barriers to lifting three-storey limit - but a key tenet of the small-house policy could be challenged

PUBLISHED : Thursday, 16 January, 2014, 7:11am
UPDATED : Thursday, 16 January, 2014, 7:11am

Any move to ease height limits on future homes granted to New Territories villagers would face no legal barriers, a leading academic says - though a key tenet of the small-house policy is vulnerable to a court challenge.

Professor Johannes Chan Man-mun, dean of law at the University of Hong Kong, was responding to a suggestion by rural strongman Lau Wong-fat that male, indigenous villagers be allowed to build homes higher than three storeys to ease a shortage of rural land.

"Whether [Lau's] proposal is feasible or not is not a legal question, it's a political question," Chan said at an HKU discussion on the policy. He said the legal framework for the small-house policy contained nothing to stop the height limit from being changed or removed, as suggested by Lau in an interview with the Post in September.

Lau, chairman of the powerful rural body the Heung Yee Kuk, suggested the government study the example of Shenzhen, where certain villagers can build homes of up to 30 storeys.

Introduced in 1972, the policy grants men who can trace their ancestry to a New Territories village before 1898 the right to build a three-storey home on a 700 sqft plot in their village at the age of 18. It can be built on family land or, as in 70 per cent of cases, on government land offered at a discount to the market price under a "private treaty grant".

Chan said the private treaty grant mechanism was unsustainable and could be overturned in court. He did not speculate as to who would make the challenge, but the small-house system has long been criticised as discriminatory against women and more recent arrivals in the New Territories. It has also been criticised for allowing "indigenous" people with no intention of returning - including many living overseas - to cash in. Chan said he understood that the Department of Justice was making "good preparations" - involving "tonnes of papers" - for a lawsuit.

The kuk claims the entitlement is covered by a clause of the Basic Law protecting indigenous rights. But Chan said "any policy can be changed" and it was not "sacred and untouchable".

At the same forum, former Law Society president Junius Ho Kwan-yiu, a rising rural leader and a critic of Lau, said the policy was "part of the constitution" and could not be changed easily.