Villager challenges Small House PolicyLocal | Stella Wong 18 Apr 2019
A Yuen Long villager filed a judicial review against the government, challenging how it only allows indigenous villagers from "recognized villages" to build small houses. It is the second judicial challenge to the Small House Policy lately.
The policy, which was introduced in December 1972, allows a male indigenous villager aged 18 or above to apply for permission to build a small house within his village once in his lifetime.
Tam Wai-fung, who lives in Shap Pat Heung, filed the writ to the High Court on Tuesday. The respondent is the Director of Lands, Thomas Chan Chung-ching. In the writ, Tam said the Lands Department categorizes indigenous residents into recognized villages and established villages.
"Only villagers from recognized villages are qualified to apply for building small houses, but not residents of established villages. Such a decision is wrong," he wrote.
Tam asked the court to tell the department it cannot exercise administrative means to scrap the traditional lawful rights of indigenous residents in established villages, as a recent judgment and the Basic Law recognizes building small houses as the lawful right of indigenous villagers.
According to the department, a recognized village needs to satisfy five basic criteria, including one saying the village was in existence in 1898, and the village name appeared on both the Demarcation District sheets produced between 1899 and 1904 and the Block Government Leases that came into effect in 1905.
There must be signs of continuous habitation by indigenous villagers within the village since 1945. There are 642 recognized villages.
The criterion for a village to be included on the List of Established Villages is much simpler: if it existed in Hong Kong in 1898. This can be determined by examining the Block Government Leases.