57
3. It seems obvious that before an executive decision can be reached as to what action Government should take, either through the instrumentality of the exist- ing law or of new legislation, the fundamental question must be considered and answered as to whether the cost of removal should ultimately fall on the owner (or the land) or on the general public.
4. After the helpful discussion in Executive Council, I have given this question a lot of anxious thought, and I have come to the definite view that the cost should fall on the owner or land and NOT on the general public.
5.
as follows:
6.
The case for saddling the liability on the general public may be summarized
(1) the property was damaged or destroyed by war for which the owner cannot be made responsible. In so far as Government is not seeking to enforce the covenant in a Crown Lease (where it exists) to main- tain a building in a reasonable state of repair, this point has been admitted by Government.
(2) Government is not paying war damage to owners for properties damaged or destroyed. To make them pay for removal of debris is in effect to add "insult to injury" by making them assume an added item of war damage.
(3) The removal is in the interests of the public and should therefore be
at public expense.
I feel, however, that there is really no substance in the claim, and that the answer to such claim can also be summarized shortly:
(1) the relation of Government as landlord and the owner as Crown Lessee is subject to reciprocal rights and responsibilities. Apart from War, these are governed primarily by the Crown Lease. In addition, an owner of property is subject to various social obligations which find legislative expression in such ordinances as the Public Health (Sanita- tion) Ordinance 1935 the Summary Offences Ordinance, 1932. One clear example of such obligations is that an owner must not allow his premises to be in such a state as to constitute a public nuisance or a menace to public health-such as having his drain in his backyard choked up by rubbish.
(2) Just because Government does not seek to enforce any particular covenant against an owner on account of the circumstances of the war, (assuming it to be enforceable), surely it does not follow that his social obligations as an owner are therefore at an end.
(3) The removal of debris is not an added item of war damage. It is, indeed, a part of that damage. For if Government were paying war damage, or if the owner could get it from Reparations, I have no doubt that the cost of removal would be allowed.
(4) Indeed, since removal is part of war damage, and since Government is not paying war damage, any payment by Government of the cost of removal would be inconsistent and contrary to Government policy.
(5) Finally, the argument, that because the removal is in the interests of the public it should be at the cost of the public, can only be valid if an owner has no social obligation not to permit his property to be a public nuisance. If this were not so, the public should pay for remov- ing the rubbish which has choked the drain in his backyard.
7. I may incidentally point out that some of the considerations which have induced Government to conclude that war compensation should not be paid by the Colony are equally applicable to the question whether or not Government should pay for the removal of the debris. Over two years have elapsed since the British reoccupa- tion of the Colony; a great many sites have been cleared by their owners, and buildings