村屋僭建被發出清拆命令時可採取的行動

2013-07-05 12:30:52

一、背景
屋宇署於2012年4月開始以新模式規管新界村屋僭建，違例情況較嚴重及潛在較高風險的現有僭建物將被優先清拆。至於違例情況較輕的僭建物則可根據屋宇署實施的申報計劃，享有五年的寬限期。
 
然而，署方嚴厲執法，未有顧及市民真實苦況便發出清拆令。大聯盟為保障業主權益，希望透過此文章分析業主可選擇的行動。
 
二、問題重心
屋宇署現時發出的清拆令是根據第123章《建築物條例》第24(1)條，指業主沒有根據《建築物條例》第14條的規定，事先得到建築事務監督批準建築圖則及其同意，進行有關改建工程。大聯盟認為屋宇署的執法行動有問題，所以對業主提出以下建議。
 
三、建議
當業主收到清拆令時，應即時考慮下一步的行動。業主可選擇在限期內清拆，或不清拆。如業主不希望清拆，便需要考慮是否上訴或是按兵不動。如果業主超過限期仍未清拆，屋宇署便會按其工作進度申請法庭傳票。
 
如果業主決定上訴，便需於屋宇署發出命令的上訴期限內，將上訴通知書送達上訴審裁小組及屋宇署的建築事務監督。在發出上訴通知書的28日內，業主應再次呈交詳情陳述書，講述上訴理據。
 
大聯盟認為，業主可以以下列理由上訴：
  1. 屋宇署以《建築物條例》第14條及第24(1)條指業主必須向建築事務監督申請的清拆令並不合理，原因是新界村屋是由地政處及第121章《建築物條例(新界適用)條例》監管。所以新界村屋的僭建物亦應按第121章，由地政處處理，而並非由屋宇署監管。
  2. 換言之，業主就其天台的臨時建築物之更換可以向地政處申請豁免証明文件，而處長可按第121章第4條或第5條(a)或(d)發出豁免証明文件。
  3. 政府曾承諾不會即時處理低風險的結構。業主認為自己的構築物未有即時風險是政府讓業主抱有的合理期望(Legitimate expectation)。
  4. 屋宇署選擇性執法，違反政府應當維持的公平原則。
業主決定上訴前，應考慮有關上訴的風險。
 
OPTIONS AVAILABLE WHEN SERVED WITH A REMOVAL ORDER 
FOR UNAUTHORIZED BUILDING WORKS
 
Background
 
From April 2012, the Hong Kong Buildings Department began to enforce new regulations against unauthorized building works (UBW) on New Territories Village Houses, which are also known as New Territories Exempt Houses (NTEH). Under this new policy, high-priority removal targets will consist of UBWs that are in serious contravention of the law, or are seen to be obvious hazards posing imminent danger to life or property. As for UBWs that are deemed to be of the ‘lower risk’ category, the Buildings Department has introduced a voluntary reporting scheme, which grants eligible UBWs a 5 year grace period.
 
Since the implementation of the new policy, the Buildings Department has issued numerous removal orders. Such enforcement methods demonstrate an absence of proper consideration for affected residents. In an effort to advocate the rights and interests of these people, the N.T. Concern Group hopes to detail, in this paper, the various responsive actions available to owners who are in receipt of a removal order
 
Core Issue
 
The Buildings Department may issue, at their discretion, a removal order for UBWs under the statutory authority provided in Section 24(1) of the Buildings Ordinance (Cap. 123). The provision states that an order may be made on the basis that the owners had commenced building works without consent from the Building Authority, or had failed to submit the proper plans and documentations for formal approval. However, the N.T. Concern Group feels that the legal basis of enforcement may not be entirely well-supported, and would like to make the following recommendations.
 
Recommendations
 
Upon receipt of an order from the Building Department, the owner should consider – at the first opportunity – the different options available to him / her. The owner may choose to comply with the order by removing the offending UBW within the specified period; or he / she may choose not to remove the offending structure. If the owner chooses not to comply with the order, he / she must then decide whether to appeal the statutory order, or to do nothing. However, if the owner does nothing and fails to demolish the UBW at issue within the specified time, the Building Department may take further action – including the application for a court summons or further legal prosecution.
 
If the owner wishes to appeal the order, he / she must first lodge an appeal within the statutory period (21 days after the date of notification on the order). This is done by serving a Notice of Appeal directly on the Secretary to the Appeal Tribunal, and also on the Building Authority. Then, the owner must furnish a Statement of Particulars (submitted within 28 days of lodging the appeal notice), which should contain details of the matter at issue and the intended grounds of appeal.
 
Listed are some potential grounds of appeal:
  1. The Buildings Department derives its authority for issuing orders from Sections 14 and 24(1) in the Buildings Ordinance, which states that consent or approval from the Buildings Authority must be obtained prior to the commencement of any building works. However, this should not be applicable to NTEHs, as they are legally governed by the Building Ordinance (Application to the New Territories) Ordinance (Cap. 121). In this view, it would appear that any non-compliance with existing legislation, such as UBWs, should be governed by Cap. 121. The relevant statutory authority would thus be vested in the Lands Department and not the Building Department.
  2. In other words, the owner may apply to the Lands Department for a Certificate of Exemption in relation to the maintenance or renovation of temporary structures on rooftops. The Director of the Lands Department may then grant such a Certificate through the statutory powers conveyed by Sections 4, 5(a) and (d) of the Building Ordinance (Application to the New Territories) Ordinance (Cap. 121).
  3. The Government has publicly stated that ‘low-risk’ UBWs will not be subject to immediate enforcement under this new policy. This has created a legitimate expectation in owners whose properties are not categorized as high-priority removals. It would be unfair for the Government to now retract upon its promise.
  4. The Buildings Department’s absolute discretion in the enforcement of this matter is, in many ways, a contravention to the fundamental principles of fair and just government.
In conclusion, it is advisable for any owner – when served with a removal order – to carefully consider all the potential consequences of an appeal action before lodging the application.