Government must get real about illegal structures in Hong Kong

PUBLISHED : Wednesday, 17 January, 2018, 5:27pm
UPDATED : Wednesday, 17 January, 2018, 9:27pm

Jake van der Kamp is right, Justice Secretary Teresa Cheng Yeuk-wah has to go (“Too busy? Teresa Cheng’s book says it’s not a defence”, January 14). However, the big question is why there are so many unauthorised building works in Hong Kong.

As van der Kamp points out, if you take a bus ride in the New Territories it’s obvious every second house has a structure on the roof, a closed-in balcony or a garden extension.

The answer to the question is simple – the planning approval system is broken and people are confident they can ignore regulations because the risk of challenge is so small. Moreover, everyone does it, including senior government people.

What makes matters worse is that past inaction, inconsistent policy and a practice of tolerating some unauthorised building works while enforcing demolition orders on others has given perpetrators the perfect legal defence. They have a “legitimate expectation” that the Building Authority is being unreasonable and have a right to build whatever they like. If people are challenged, they can say they are not just being treated unfairly, the government is abusing its powers.

The concept of legitimate expectations has been around for a long time, it’s extremely well-documented and enshrined in Hong Kong law and English law. Precedents abound if readers search for “legitimate expectations” online.

The real problem now is that the government has dug a big hole for itself and it has become a political time bomb. The problem is actually even bigger than van der Kamp described because the Building Authority and the buildings appeal tribunal resolutely refuse to acknowledge the application of the law regarding legitimate expectations.

They also refuse to recognise that government is in contravention of Article 14 of the Bill of Rights (“arbitrary interference with people’s homes”).

So, firing Teresa Cheng would be a good start, but the Department of Justice must also be educated on the subject of legitimate expectations. Also, sooner rather than later, the government needs to adopt a new approach to planning permission and enforcement, including: sensible guidelines for new structures; timely approvals for sensible applications; a new website that mere mortals can easily navigate; and, retroactive approvals for structures that are safe and do no harm.

This problem is not going to go away and we are all wondering which senior government official is going to be next.

Andrew Ferguson, Lantau