Zoning Sanctions in Case of Non-Compliance with the Licence and Annexes in the Light of Precedents

Müzeyyen Eroğlu Durkal

Makale detayları

Zoning Sanctions in Case of Non-Compliance with the Licence and Annexes in the Light of Precedents

Yazarlar:

Müzeyyen Eroğlu Durkal

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.243-286

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316538

pISSN:

1306-3839

Anahtar kelimeler:

Özet:

 Urban planning law provides for numerous administrative sanctions, among which the issuance of a building freeze, the sealing of the structure, the imposition of fines and demolition orders stand out as types of sanctions. Pursuant to Urban Planning Law No. 3194, it has been observed that many lawsuits are filed before the administrative courts due to stop-work protocols and sealing procedures for structures that violate permits and their annexes, as well as fines and demolition decisions that are subsequently imposed. For a structure to be considered lawfully constructed, it is essential that construction begins with a building permit and continues in accordance with the permit and its annexes. The construction must also comply with the permit and its annexes until the construction work is completed and the occupancy permit is issued. Parts of a construction that do not comply with the permit and its annexes in contractual situations are considered illegal constructions, and the penalties and demolition decisions established in the Urban Planning Law may be applied to these non-compliant parts. In the event of non-compliance with the permit and its annexes, the first step is to issue a stop work protocol and seal the structure. The stop work protocol, a protocol that causes the cessation of construction work by establishing that construction work is being carried out in violation of the permit and its annexes, must be duly and officially drawn up and served before fines or demolition decisions can be made for non-compliance with the permit and its annexes. According to scientific and judicial precedents, the stop work report must first explicitly state the deviations from the permit and its attachments by the competent technical experts, together with the area measurement in square meters that leaves no room for doubt in order to accurately determine the current state of the structure. Subsequently, it should be noted in the building cessation that structures that can be brought into conformity with the permit must be brought into conformity within the specified period; otherwise, the penalties established in the building regulations will be imposed. In accordance with Article 402 of the 1982 Constitution, the building stop protocol must also specify the administrative or judicial remedies available to the owner against this procedure and the time limits that apply. In order for the administrative sanctions established in the Urban Planning Act to be applied to constructions that violate permits and their annexes, it is crucial that the authority imposing the sanction is competent and that decisions are made according to the correct procedures. Subsequently, the building stop protocol, which forms the basis for administrative sanctions, must be properly drawn up and served on the person concerned. With regard to the detailed provisions on fines in Article 42 of the Town Planning Act, it should be noted that, in accordance with the principle of personal liability, fines should be imposed on the person who violates the zoning regulations. In practice, it has been observed that fines are imposed directly on the owner of the building without identifying the person responsible for the non-compliant construction activity. In such cases, decisions by the administrative courts often lead to the fines being annulled due to the principle of personal liability. It is therefore important that the authorities authorized to impose fines identify the person responsible for the non-compliant construction order to ensure the legality of the fines imposed. Since the demolition decision is an administrative sanction that eliminates the economic and physical existence of structures that violate permits and their annexes and significantly affects the rights and interests of the parties involved, it is advisable to use this measure as a last resort. Therefore, before deciding on demolition, the administrative authorities should look for ways to bring the structure into compliance with zoning regulations, especially if there is a possibility of resolving the issues of non-compliance with the permit. As regards the cause factor in demolition decisions, the notification must be justified, the legal grounds must be correctly stated and the statement must be both legally correct and truthful. It should be noted that the expiry of the deadline set by the authorities for issuing a demolition decision is mandatory for structures where compliance with the permit is possible. After this deadline, no demolition decision should be issued for structures where the non-compliance has not been rectified but efforts to rectify the non-compliance have commenced after the deadline has expired, taking into account the discretion of the authorities.

 İmar hukukunda birçok idari yaptırım öngörülmekle birlikte yapı tatil zaptı düzenlenerek yapının mühürlenmesi ve durdurulması ile para cezası ve yıkım kararları bu yaptırımlar içinde ön plana çıkan yaptırım türleridir. İmar hukukunda idari yaptırımlar, ruhsata tabi yapılar için uygulanabilmektedir. Yapı tatil zaptının nasıl düzenlenmesi gerektiği, tebliği, yapının mühürlenmesi ve ardından tesis esilecek para cezası ve yıkım kararları konusunda uygulamada hukuka aykırı işlem tesis edildiği görülmektedir. Bu konuda özellikle idari yargı kararları ışığında söz konusu uygulama hataları ve konuyla ilgili tesis edilecek idari işlemlerin hukuka uygun kabul edilebilmesi için dikkat edilmesi gereken hususlar önem arz etmektedir. Bu noktada da çalışma bilimsel ve yargısal içtihatlar çerçevesinde şekillendirilmiştir. Çalışmanın sınırını 3194 sayılı İmar Kanunu uyarınca ruhsat ve eklerine aykırı yapılarda, yapı tatil zaptının düzenlenip yapının mühürlenmesi süreciyle başlayan imar para cezası ve yıkım kararları oluşturmaktadır.

 Urban planning law provides for numerous administrative sanctions, among which the issuance of a building freeze, the sealing of the structure, the imposition of fines and demolition orders stand out as types of sanctions. Pursuant to Urban Planning Law No. 3194, it has been observed that many lawsuits are filed before the administrative courts due to stop-work protocols and sealing procedures for structures that violate permits and their annexes, as well as fines and demolition decisions that are subsequently imposed. For a structure to be considered lawfully constructed, it is essential that construction begins with a building permit and continues in accordance with the permit and its annexes. The construction must also comply with the permit and its annexes until the construction work is completed and the occupancy permit is issued. Parts of a construction that do not comply with the permit and its annexes in contractual situations are considered illegal constructions, and the penalties and demolition decisions established in the Urban Planning Law may be applied to these non-compliant parts. In the event of non-compliance with the permit and its annexes, the first step is to issue a stop work protocol and seal the structure. The stop work protocol, a protocol that causes the cessation of construction work by establishing that construction work is being carried out in violation of the permit and its annexes, must be duly and officially drawn up and served before fines or demolition decisions can be made for non-compliance with the permit and its annexes. According to scientific and judicial precedents, the stop work report must first explicitly state the deviations from the permit and its attachments by the competent technical experts, together with the area measurement in square meters that leaves no room for doubt in order to accurately determine the current state of the structure. Subsequently, it should be noted in the building cessation that structures that can be brought into conformity with the permit must be brought into conformity within the specified period; otherwise, the penalties established in the building regulations will be imposed. In accordance with Article 402 of the 1982 Constitution, the building stop protocol must also specify the administrative or judicial remedies available to the owner against this procedure and the time limits that apply. In order for the administrative sanctions established in the Urban Planning Act to be applied to constructions that violate permits and their annexes, it is crucial that the authority imposing the sanction is competent and that decisions are made according to the correct procedures. Subsequently, the building stop protocol, which forms the basis for administrative sanctions, must be properly drawn up and served on the person concerned. With regard to the detailed provisions on fines in Article 42 of the Town Planning Act, it should be noted that, in accordance with the principle of personal liability, fines should be imposed on the person who violates the zoning regulations. In practice, it has been observed that fines are imposed directly on the owner of the building without identifying the person responsible for the non-compliant construction activity. In such cases, decisions by the administrative courts often lead to the fines being annulled due to the principle of personal liability. It is therefore important that the authorities authorized to impose fines identify the person responsible for the non-compliant construction order to ensure the legality of the fines imposed. Since the demolition decision is an administrative sanction that eliminates the economic and physical existence of structures that violate permits and their annexes and significantly affects the rights and interests of the parties involved, it is advisable to use this measure as a last resort. Therefore, before deciding on demolition, the administrative authorities should look for ways to bring the structure into compliance with zoning regulations, especially if there is a possibility of resolving the issues of non-compliance with the permit. As regards the cause factor in demolition decisions, the notification must be justified, the legal grounds must be correctly stated and the statement must be both legally correct and truthful. It should be noted that the expiry of the deadline set by the authorities for issuing a demolition decision is mandatory for structures where compliance with the permit is possible. After this deadline, no demolition decision should be issued for structures where the non-compliance has not been rectified but efforts to rectify the non-compliance have commenced after the deadline has expired, taking into account the discretion of the authorities.

 Urban planning law provides for numerous administrative sanctions, among which the issuance of a building freeze, the sealing of the structure, the imposition of fines and demolition orders stand out as types of sanctions. Pursuant to Urban Planning Law No. 3194, it has been observed that many lawsuits are filed before the administrative courts due to stop-work protocols and sealing procedures for structures that violate permits and their annexes, as well as fines and demolition decisions that are subsequently imposed. For a structure to be considered lawfully constructed, it is essential that construction begins with a building permit and continues in accordance with the permit and its annexes. The construction must also comply with the permit and its annexes until the construction work is completed and the occupancy permit is issued. Parts of a construction that do not comply with the permit and its annexes in contractual situations are considered illegal constructions, and the penalties and demolition decisions established in the Urban Planning Law may be applied to these non-compliant parts. In the event of non-compliance with the permit and its annexes, the first step is to issue a stop work protocol and seal the structure. The stop work protocol, a protocol that causes the cessation of construction work by establishing that construction work is being carried out in violation of the permit and its annexes, must be duly and officially drawn up and served before fines or demolition decisions can be made for non-compliance with the permit and its annexes. According to scientific and judicial precedents, the stop work report must first explicitly state the deviations from the permit and its attachments by the competent technical experts, together with the area measurement in square meters that leaves no room for doubt in order to accurately determine the current state of the structure. Subsequently, it should be noted in the building cessation that structures that can be brought into conformity with the permit must be brought into conformity within the specified period; otherwise, the penalties established in the building regulations will be imposed. In accordance with Article 402 of the 1982 Constitution, the building stop protocol must also specify the administrative or judicial remedies available to the owner against this procedure and the time limits that apply. In order for the administrative sanctions established in the Urban Planning Act to be applied to constructions that violate permits and their annexes, it is crucial that the authority imposing the sanction is competent and that decisions are made according to the correct procedures. Subsequently, the building stop protocol, which forms the basis for administrative sanctions, must be properly drawn up and served on the person concerned. With regard to the detailed provisions on fines in Article 42 of the Town Planning Act, it should be noted that, in accordance with the principle of personal liability, fines should be imposed on the person who violates the zoning regulations. In practice, it has been observed that fines are imposed directly on the owner of the building without identifying the person responsible for the non-compliant construction activity. In such cases, decisions by the administrative courts often lead to the fines being annulled due to the principle of personal liability. It is therefore important that the authorities authorized to impose fines identify the person responsible for the non-compliant construction order to ensure the legality of the fines imposed. Since the demolition decision is an administrative sanction that eliminates the economic and physical existence of structures that violate permits and their annexes and significantly affects the rights and interests of the parties involved, it is advisable to use this measure as a last resort. Therefore, before deciding on demolition, the administrative authorities should look for ways to bring the structure into compliance with zoning regulations, especially if there is a possibility of resolving the issues of non-compliance with the permit. As regards the cause factor in demolition decisions, the notification must be justified, the legal grounds must be correctly stated and the statement must be both legally correct and truthful. It should be noted that the expiry of the deadline set by the authorities for issuing a demolition decision is mandatory for structures where compliance with the permit is possible. After this deadline, no demolition decision should be issued for structures where the non-compliance has not been rectified but efforts to rectify the non-compliance have commenced after the deadline has expired, taking into account the discretion of the authorities.

Makale detayları

Zoning Sanctions in Case of Non-Compliance with the Licence and Annexes in the Light of Precedents

Yazarlar:

Müzeyyen Eroğlu Durkal

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.243-286

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316538

pISSN:

1306-3839

Building

Violation of the Licence And Annexes

Building Holiday Re-port

Administrative Fine

Demolition DecisionYapı

Ruhsat ve Eklerine Aykırılık

Yapı Tatil Zaptı

İmar Para Cezası

Yıkım Kararı

Sayı

Makale detayları

Yazarlar: Müzeyyen Eroğlu Durkal

Yayıncı: Erciyes University

Ana Başlıklar: İdare Hukuku

Dergi: Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.243-286

Belge Tipi: Makale

Yayın Tarihi: 4/2024

Belge Dili: Türkçe

Document ID (Org No.): 2001316538

pISSN: 1306-3839

Sayı

Yazarlar:

Müzeyyen Eroğlu Durkal

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.243-286

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316538

pISSN:

1306-3839