Case Study Real Estate & Urbanism Attorney Cluj: Objectives Achieved
Construction of an equestrian center in Apahida on land for which the general urban plan of Apahida commune and the related local urban regulation required the elaboration of a zonal urban plan prior to issuing the building permit caused the Cluj Court of Appeal to order the annulment of the building permit and the demolition of the constructions built under that permit.
Relevance of the Case
This case is particularly important because it establishes the conditions under which neighbors affected by construction carried out without a permit or in breach of urbanism rules may obtain in court the demolition of illegal structures.
The Court equates obtaining a building permit without having the mandatory urban planning documentation to the hypothesis of building without a permit and thus enforces the provisions of Article 56 ind.1 of Law no. 350/2001, according to which “Urban planning documentation cannot be initiated or approved for the purpose of legalizing construction built without a building permit or which do not comply with the provisions of the building permit.”
Case Study of Illegal Construction Demolition: Presentation and Explanation of Fault
The Prefect of Cluj County and claimants A and B filed two separate actions, which were later joined, seeking annulment of the building permit for its issuance in breach of the provisions of Law no. 50/1991 and Law no. 350/2001 in regards to the property in Apahida intended for an equestrian sports club.
The claimants A and B requested, besides annulment of the permit, the demolition of the constructed buildings, or alternatively, that the defendants pay damages.
It was alleged that before issuing the building permit, it was necessary to prepare an urban planning documentation, specifically a zonal urban plan (PUZ), considering that the land on which the construction was authorized is in a zone not regulated urbanistically. Also, the topographic plan approved by OCPI Cluj is missing from the documentation annexed to the building permit.
Urbanism Attorney Cluj: Supporting the Case
Based on cadastral and urban planning expertise ordered in the first instance, it was established that the land fell within two UTRs (territorial reference units), and that the location of the structure overlays areas belonging to both UTRs, both unregulated urbanistically, thereby requiring the preparation of a PUZ before the contested building permit could be issued, in accordance with the general urban plan (PUG) and local urban regulation (RLU) of Apahida commune.
Prior to issuing the building permit it was mandatory, per Article 47 of Law no. 350/2001 and according to the PUG and associated RLU of the commune, to prepare urbanism documentation that regulates land usage, development of municipal infrastructure, architectural-volumetric compliance, setbacks relative to side and rear boundaries, alignment, minimum distance from aerial electric lines crossing plots, and controlled expansion of built areas, all of which are responsibilities of the local public administration.
Accordingly, the court found that it was mandatory, in accordance with those legal provisions, to prepare a PUZ before the issuance of the contested building permit.
The court emphasized that illegality of issuing the building permit may also be determined by illegality of the urbanism certificate that contains incomplete data. Supplementary, the claim was also admitted on the basis of absence of a situation plan and site plan in Stereo 70 projection prepared on topographic support approved by OCPI Cluj.
Conclusions in First Instance
Regarding the demolition claim, the court of first instance held that the claimants have a determined interest in removing the harmful consequences of the illegal administrative act; specifically, the building permit, and that not only the public authority has the standing and interest to request demolition, but also private persons harmed, regardless of the position of the authority acting or not acting in its discretion to order demolition of illegal constructions.
However, the court rejected on merits the demolition claim of the constructions because the claimants’ allegations regarding reduction in value of neighboring properties could not be proved, given that, at the time of litigation, those were agricultural lands.
As to potential future discomfort if the lands, currently agricultural, will be urbanized and inhabited, the court held that damages will have to be proven to the extent they occur.
The claimants A and B appealed, asking for partial annulment of the Cluj Tribunal’s judgment and retrial with a ruling to order demolition of the constructions erected based on the annulled permit.
Final Conclusions and Reasoned Considerations
The Cluj Court of Appeal found that the first instance made a wrong application of material law relative to the factual situation as found.
An essential circumstance overlooked by the Tribunal is that the lands of the claimants are in immediate proximity to the site authorized for the equestrian club, so in the area which should have been regulated via a PUZ.
Since there are no precise urban regulations, and this allowed that in the architectural brief only technical parameters of the land (maximum coverage ratio ‒ POT and maximum usage coefficient ‒ CUT) be taken from the regulations corresponding to only one of the two UTRs in which the land is situated, the Court found an evident harm to the claimants’ rights with respect to usage of neighboring lands.
Regarding the demolition claim, the Court first established in principle that in urbanism matters the private parties’ damage repair (namely demolition) does not follow automatically from annulment of the building permit by applying the provisions of art. 18 paragraphs (1) and (3) of Law no. 554/2004 without any qualification but must be examined to what extent legal compliance can be achieved after annulment of the building permit.
In this case, the building permit was annulled due to missing PUZ, which is a mandatory urban planning document that should underpin the building permit.
Ordering Demolition of Constructions Built Based on the Illegal Permit
Adoption of a PUZ for the disputed zone or a new PUG is illegal in itself, being prohibited by the mandatory provisions of art. 56 ind.1 of Law no. 350/2001 which provide that no urbanism documents may be initiated or approved with the aim of legalizing constructions built without a building permit or that do not comply with the building permit.
This provision applies a fortiori when the reason for nullity of the building permit is that the construction was erected without the permit being based on urban planning documentation that was mandatory.
Otherwise, the provision would be without any useful effect, allowing legalization by evading from the urban planning rules that required mandatory preparation of urban planning documentation.
Taking into account all these considerations, the Court admitted the appeal declared by the claimants and granted their action, annulling the building permit issued by the Mayor of Apahida Commune and ordered demolition of the constructions built under this building permit.