Case Study: Brisc Legal secured the rejection of the request to annul the building permit and to demolish works carried out under it. The permit was modified and concerned vertical land leveling works. Through the evidence presented it was shown that the modifications relative to the natural land level were not harmful to the neighboring plot.
CASE RELEVANCE
Annulment of a building permit as illegal can allow harmed third parties to request and obtain demolition of construction works built under that permit. Neighbors of a plot of authorized land are often individuals harmed by the illegal issuance of a unilateral administrative act.
This type of litigation often involves complex proof, including judicial technical expertise, and formulation of solid legal arguments to defend the beneficiary of the permit whose annulment is being sought.
SUMMARY OF FACTS
In fact, via the statement of claim, the claimants requested annulment of the building permit issued for modifications during the execution of the building works for a single-family house with basement + ground + first floor, fences and external landscaping works, and obliging the defendants to demolish the unlawfully built works as a result of annulling the permit.
Also in the introductory action, the claimants showed that the defendants, as permit beneficiaries, raised the terrain level of their property, even though according to the urbanism certificate there was an express prohibition in this respect.
Moreover, the claimants specified that, following the works carried out on the defendants’ property, the defendants deposited excavated earth next to the boundary fence between the properties, raising the terrain level of their land up to the top of the fence plinth.
The claimants asked the court to find that the defendants made leveling and vertical land systematization works, despite the prohibition in the urbanism certificate, and that the defendants obtained the building permit whose annulment is requested in relation to the illegally elevated land levels.
PRESENTATION AND SUPPORT OF THE CASE
The defendants were assisted and represented before the Cluj Tribunal by the Brisc Legal team through lawyers specializing in urbanism and construction law, who developed before the court all the arguments for which the claimants’ claims should be rejected as unfounded.
Throughout the execution of the works on the defendants’ property, the claimants submitted reports to the competent authorities to request inspections on site; highlighting the behavior of the claimants during the execution works is relevant in that even the request for annulment of the building permit was characterized by the same unsubstantiated invocation of alleged irregularities.
The Brisc Legal team showed that the land had a natural slope, being higher at the street end; the natural land levels were those determined by cadastral measurement carried out by the defendants immediately after acquiring the land.
Thus, in accordance with legal obligations, before issuance of the building permit, technical documentation was prepared for making a topographic plan, received by the Cluj Cadastre and Real Estate Publicity Office.
The documentation including the topographic plan and the inventory of coordinates is a mandatory written piece that is part of the technical documentation underlying issuance of the building permit and is extremely relevant to demonstrate the natural terrain levels, relative to which the legality of the proposed terrain adjustments is assessed.
The urbanism lawyer showed that according to the sheet drawn “plan exterior landscaping and arrangement works,” it appears that leveling of terrain levels was authorized, and the technical documentation contains the cadastral measurement with natural terrain levels—those from a time prior to the issuance of the building permit and prior to any building works. The authorization of the change in terrain level was issued relative to those levels, approved by the Cluj Cadastre and included in the technical documentation, and not relative to the terrain levels at the time of construction works.
Separately, it was argued that local urban planning legislation and local regulations do not flatly prohibit vertical terrain arrangements, but only those that could harm neighboring parcels. Thus, Brisc Legal’s urbanism and construction attorneys argued that the complaining neighbors cannot prove harm to their own property right, an aspect that in fact was analyzed and considered by the local authority at the time of issuing the urbanism certificate and the building permit.
In this case, judicial technical expertise in the specialties of topography, cadastre, and geodesy was also administered for determining the terrain levels at different moments in time and for clearly identifying the levels authorized based on the written and drawing parts of the administrative act being challenged.
COURT’S DECISION
In line with the arguments developed by the Brisc Legal team in defense of the defendants, the Cluj Tribunal ruled that the complainants’ claim that the provisions of the urbanism certificate were not respected is unfounded, given that the building permit was issued based on an urbanism certificate other than the one indicated by the claimants.
Moreover, the court noted that even through the judicial technical expertise in topography, the modification of the terrain level was not confirmed in a manner harmful to the neighbors.
For these reasons, the court rejected as unfounded the claimants’ request to annul the building permit and the request for demolition of the works built under that permit. Thus, the works carried out by the defendants were upheld.