Lai See

No end in sight to illegal structures dilemma

We have to concede that our efforts earlier this week at clarifying the differences between illegal and unauthorised structures have not been an unqualified success. Our initial piece was based on discussions with industry professionals but did not include the Buildings Department. This is because it declined to answer our questions about what has now become a highly charged political issue. It has chosen to remain studiously aloof when it could have helped matters by giving us its view.

Our position in the earlier piece was that people took a risk when they installed minor additions to their property. If the department spotted a structure and ruled it did not comply with building regulations, then the structure became unauthorised and had to be taken down within a certain period of time. If it wasn't taken down within the period then it became illegal.

Our piece has elicited a response from no less an authority than Malcolm Merry, now with the University of Hong Kong but who practised as a barrister for many years and has been involved in numerous cases related to land and buildings as well as writing about the subject extensively. He writes to say that contrary to what we wrote earlier, there is no legal distinction between illegal and unauthorised structures: they are both informal descriptions of the same thing, building works carried out without prior written consent of the Building Authority contrary to section 14 of the Buildings Ordinance.

The Building Authority's name for them is unauthorised building works (UBW). Merry goes on to say that the ordinance does not use the phrase 'illegal structures, unauthorised structures or UBW - it just forbids building works without BA permission'. He says building works are very widely defined. 'They include construction, demolition and building operations of all kinds. The definition draws no distinctions between works according to size or age or danger.' He says these differences are recognised in the Building Authority's enforcement policy. 'The BA has no power to tolerate structures or waive the law, though it does have priorities for enforcement.'

He adds that 'if you erect, or buy property containing, UBWs, that is not an offence but it does not make the structures any the less illegal in the sense of being in contravention of section 14'. He further says: 'If an enforcement notice is issued and ignored, that can give rise to personal criminal liability for the owner: the works of course remain illegal.'