The Basic Law means land resumption in New Territories to build more housing isn’t so simple

Ryan Ip and Latifah Sat argue that, thanks to the private property protections in the Basic Law, an old colonial-era ordinance letting the government take lands for public purposes may not hold up in court, as shown by Hysan Development’s case against the Town Planning Board

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A New Territories resident stands at his farm in front of high-rise residential buildings. Photo: Reuters

Published: 5:03am, 2 Aug 2018Updated: 5:03am, 2 Aug 2018

In our big debate on where to find land in Hong Kong for affordable housing, some commentators have argued that the government should compulsorily resume large plots of private agricultural land in the New Territories, using the powers vested in it by the Lands Resumption Ordinance. They say the legislation’s sweeping powers will ensure expediency, legal clarity and a low risk of litigation.

However, these commentators have overlooked the nuances of this piece of legislation. The ordinance is not as unfettered as its language suggests.

Dated from the 19th century, the ordinance states firmly that the government can take back “any land” from private owners “whenever” it decides it is “required for a public purpose”. However, this language must now be interpreted through the lens of modern legal developments.

Under the Basic Law, the right of private ownership of property enjoys greater judicial protection than before. This was elucidated recently in the case of Hysan Development vs Town Planning Board, where Hysan challenged planning restrictions on their properties by the Town Planning Board on the grounds that the restrictions were unlawful interferences with their constitutional property rights.

For the first time, the Court of Final Appeal ruled that the right to private property under the Basic Law is protected by the principle of proportionality, which asks whether a reasonable balance is reflected between the public interest pursued by a government decision and the right of an individual or group negatively affected by that decision. Thus, in Hysan, the principle of proportionality was used as a shield against a government act that curtailed private property rights, and this will most likely be extended to the Land Resumption Ordinance. Therefore, the ordinance is not as unfettered as its language suggests.

In 2016, the Court of Final Appeal ruled in favour of Hysan Development’s right to build taller and denser city blocks, over the Town Planning Board’s objections, thanks to the property rights protections enshrined in the Basic Law. Photo: EPA-EFE