Last month, a group of 67 landowners was given some bad news.
Their very large development of small village houses in Sha Tin would still lack vehicular access, after the Court of Appeal knocked back an attempt to force the district lands office to grant them land for a road.
The landowners had their cake: all applied under the Small House Policy to erect dwellings on their respective plots of land – despite the court being wise to what was really going on (“concerted applications comprising part of a sizeable residential development controlled or assisted by a developer”).
And they wanted to eat it too: there is no vehicular access from nearby public roads, so they asked the district lands office to let them buy nearby lots resumed by the government, so that they could build a road.
It said no.
The landowners tried to argue that the Small House Policy extends to providing vehicular access.
They were not, however, able to point to any policy document that states this.
That is because there is none.
There were memos drafted for the Executive Council; there were speeches.
There were amendments to legislation to enable small village houses to be built without having to conform to strict building laws.
What never existed was a neat, concise piece of paper stating the policy.
Reading the piecemeal documentation that does exist, what seems to have emerged as “policy” (having been crafted in just six weeks) was really just an extended concession to rural villagers at the time to encourage them to build sturdier homes rather than temporary shanties.
Somehow, in the last 40 years, this has translated in Heung Yee Kuk-speak to a “right” protected under the Basic Law.
It has not helped that one of the key documents in relation to the policy, ExCo memorandum XCR(72)219, dated Nov. 14, 1972, was restricted from public view for 30 years.
Reading it today, it casts a very dubious light on the Kuk’s insistence that male indigenous villagers ever had a “right” to build a small house.
Titled “Policy with regard to small houses in rural areas of the New Territories’’ it starts off by saying there is no policy for housing the rural population.
That was not about to change.
What the colonial government of the time needed to do was regulate the ill-built village houses.
The Exco memo suggested that district lands offices be enabled to authorize private treaty grants.
A set of rules was devised, covering the size of the lot, where the land could be and at what price.
The lands offices would be able to authorize grants of lands to “permittees” (that is, people permitted to do something; in this case, build a house).
The memo then talks about extending previous concessions made to indigenous villagers in 1967.
The grant of land should not just be tied to a son’s marriage (as was the case in 1967) but on a male reaching the age of 18.
Paragraph 8(b): “Each male villager over the age of 18 may build or have built for him one house during his lifetime, provided he is not adequately housed in accordance with village tradition.’’
How the latter part would be translated in today’s terms poses an interesting question.
Rural villagers were historically given concessions in land use, and the 1972 “policy” was a further example of this.
At the time, the New Territories had 40 percent of the squatter population.
Land policy favored the construction of temporary structures, but the government wanted something more permanent to take hold.
“The present proposal is aimed at the improvement of housing and sanitary standards …” the memo says.
To say the policy has outgrown its original purpose is to state the obvious.
You need only look at the Court of Appeal judgment and its comment “concerted applications comprising part of a sizeable residential development controlled or assisted by a developer …”
But while thought of the 67 land owners being thwarted in their mega development may be one to relish, it has deprived us of a rare legal challenge to the parameters of the Small House Policy.
In lieu of the government grasping the political nettle, the only chance of ever putting the policy to the test is through fragments of litigation.
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