By Alex Liu

Hong Kong, 6 April 2023: Homeowners who carry out illegal construction work in the belief they will get away with it are being forewarned that the authorities will soon be taking a tougher stance. A report by the Ombudsman has outlined multiple ways to speed up enforcement action against so-called unauthorised building works (UBWs).

In an article several months ago, we examined how illegal structures can result in hefty fines and even suspended prison sentences for persistent offenders. Typical examples of UBWs involve enclosed balconies, canopies, signboards, external frames that hold air conditioners, and structures on rooftops or podiums.

But in her recent report, Ombudsman Winnie Chiu criticises the Buildings Department (BD) for delaying enforcement action and says penalties for non-compliance by homeowners are insufficient. Her comments follow an investigation into illegal construction activities in the New Territories which found enforcement actions to be “ineffective”. It emerges that the BD sometimes takes 9-18 months after a site inspection to issue a removal order against UBWs under construction, which she calls an “obvious failure” to meet the objective of taking immediate enforcement action.

In April 2012, the government implemented an “enhanced enforcement strategy” against UBWs in so-called New Territories Exempted Houses. These houses, typically, must not be more than three storeys, are limited to 27 feet in height and must not have a roofed-over area exceeding 700 square feet. Any additions, alterations or minor works which result in these measurements being exceeded are forbidden.

The Ombudsman’s investigation reveals that the number of reports of UBWs on such houses rose from 2,127 in 2012 to 8,552 in 2021. As at the end of 2021, nearly half of the removal orders issued by the BD were against UBWs built after the implementation of the enhanced strategy – that is, UBWs under construction or newly completed. Around one quarter of the removal orders issued against UBWs under construction were outstanding, among which 68% were issued in or before 2018. Removal orders for newly completed UBWs revealed a similar problem.

Investigators found that in the past decade, the BD completed inspections of only 46% of recognised villages. On the whole, as at the end of 2021, some 2,016 (about 37%) of the 5,384 removal orders issued by the BD were outstanding while the deadline for removal had passed. The Ombudsman’s team randomly checked some long-standing non-compliance cases and found the BD’s issuance of removal orders was followed by years of inaction.

Ms Chiu’s report also reveals that among the 972 convictions for non-compliance with removal orders in the past decade, the average fine was about HK$9,500 and there were only nine cases (involving three houses) in which imprisonment was imposed. The average fine upon re-conviction for persistent non-compliance increased to just HK$13,400. The report labels the existing penalties “insufficient to deter non-compliance”.

It also states the BD has failed to compile statistics on UBWs, making it difficult to assess the effectiveness of its enforcement system. The report calls for better co-ordination between the BD as enforcement authority and the Lands Department (LD) in its supporting role of providing relevant information.

Ms Chiu’s major recommendations to the BD include:

• Review existing guidelines and set clearer targets;
• Explore streamlining of enforcement procedures;
• Review existing arrangements for consultants’ submission of work reports regarding large-scale operations and proactively identify areas for streamlining;
• Step up monitoring of enforcement actions and clearance of backlog cases;
• Reflect to the courts the seriousness of cases involving flagrant contravention of the law and step up prosecutions against persistent non-compliant owners;
• Compile statistics on UBWs for analysis purposes;
• Holistically review policies, explore how limited resources can be utilised pragmatically and formulate performance indicators.

The report also recommends that the BD and LD regularly monitor pending cases and should consider forming a joint liaison group to strengthen co-ordination.

The BD and LD have generally accepted Ms Chiu’s recommendations, so it is reasonable to expect quicker and more rigorous application of the regulations from now on. Homeowners are advised to take note. Here at BC&C we have considerable experience in property issues and are ready to assist.

Alex Liu is Managing Partner of BC&C. He was Chairman of the Appeal Tribunal Panel (Buildings Ordinance) for nine years until 2018 and a frequent legal advisor on the TVB documentary series A Property a Day. His key areas of practice include commercial and corporate litigation, investigations by governmental bodies, and insolvency and debt restructuring. He can be contacted at alex@boasecohencollins.com.