Fair and effective use of land for homes at heart of ‘Ding’ ruling

For the first time, a highly controversial housing policy exclusive to Hong Kong indigenous male villagers has been partly struck down by a court. The ruling only upholds villagers’ right to build – the so-called Ding rights – on their own land. Exchanging and asking the government for land to build on do not constitute traditional rights and interests protected under Article 40 of the Basic Law. The landmark ruling is to be welcomed and respected. It gives the government a firm legal footing to overhaul the much-criticised policy, which hopefully, will terminate long-standing unfair practices and enable more effective and sustainable land use in the long run.

Mr Justice Anderson Chow Ka-ming of the High Court carefully examined the views presented in the judicial review of the small-house policy, under which an adult male indigenous villager descended through the male line from a resident in 1898 of a recognised village may apply for approval to build on private or government land a three-storey villa of no more than 2,100 sq ft in total. Chow, having considered rules and practices before and after the lease of the New Territories in 1898, ruled that allowing villagers to build houses on their land without seeking approval or paying the colonial government was traceable to arrangements in place before the lease and should, therefore, be considered as traditional rights. But villagers clearly did not have any right to acquire land from the government for building houses, he said. The rural affairs body, the Heung Yee Kuk, is disappointed by the outcome and will consider an appeal, while others say upholding part of the policy is still unfair.

Questions have been raised as to whether the court decision will have any real impact. Villagers will still be able to erect houses on their land under the “free building licence”, one of the three methods of granting permission to build under the policy. The other two, by private treaty and exchange, have been largely suspended by the government for years pending a review. Since its introduction in 1972, the policy has seen 10,763 private treaty grants, 28,305 free building licences, and 3,610 exchanges. So while villagers will still be allowed to build on their own land, the scale will be considerably smaller.

The judicial review came amid a heated public debate over how to source more land to solve the housing shortage. The decision shall not take effect within the next six months in light of the implications for land administration and possible appeals by those affected. Barring further development, the government should prepare for an overhaul of the policy to ensure that its negative impact will be kept to the minimum. At stake is not just villagers’ rights and interests. The broader issue is fair and effective land use, without which the provision of adequate and affordable housing will not be possible.