A building permit derives its basis from the zoning plan. Where an immovable property is situated in an area for which no zoning plan exists, issuing a permit for that property constitutes an unlawful act. Construction must actually be commenced within two years of the permit being obtained, and the structure must be completed within five years of the date of the permit; if these periods are not observed, the permit lapses automatically. Where the required conditions have been satisfied and the application has been made in due form but the request is nonetheless refused, the avenue open to the interested parties is an action for the annulment of the administrative act. An application may be made to the administration before bringing the action, or the matter may be taken directly to the courts without any preliminary stage. In either case, careful observance of the sixty-day time limit for bringing the action is decisive in preventing the loss of rights. Save for the limited exceptions falling within its scope, a permit must be obtained from the municipality or the governorship for all structures covered by the Zoning Act No. 3194.
From the perspective of zoning law, the issuing of a permit is an individual administrative act that gives effect to planning and ensures that compliance with the plans is supervised. A decision refusing the request must likewise carry all the elements of an administrative act; otherwise the act established becomes unlawful.
The Concept of a Structure
Since the lawful realisation of any construction depends on obtaining a permit, it must first be determined which structures fall within this scope.
Zoning Act No. 3194, Art. 5
“A structure comprises fixed and movable installations, on land and in water, permanent or temporary, official and private, encompassing underground and above-ground construction together with the additions, alterations and repairs thereto.”
Commencing a construction falling within this statutory definition without obtaining a permit renders the structure unlawful. Indeed, in its judgment no. 2011/12209 E., 2012/6816 K., the 14th Chamber of the Council of State held that base stations, too, are to be regarded as structures and emphasised that GSM operators are under an obligation to obtain a permit.
No permit may be issued in a place where no implementation zoning plan exists. Implementation zoning plans are prepared at a scale of 1/1000. A permit issued on the basis of a master zoning plan is unlawful.
Where an alteration is sought to a structure already covered by a permit, a fresh permit must be obtained. That said, where there is no increase in the gross proportion of the independent units and their characteristics do not change, no tax, duty or fee is levied on the permit to be issued. Alterations and repairs that do not affect the load-bearing system — such as pointing, internal and external plastering, painting and whitewashing, gutters, channels and joinery, together with floor and ceiling coverings — are not subject to a permit. Likewise, no permit is required for works such as repairs to electrical and sanitary installations, roof repairs and the relaying of roof tiles, since these do not bring about any fundamental change or substantial alteration to the structure. Substantial alteration denotes operations that affect the load-bearing element or that give rise to a change in the construction area or in the projects annexed to the permit.
Procedure for a Building Permit Application
Owners of structures wishing to obtain a permit, or their statutory representatives, apply by petition to the offices of the municipality or the governorship. Only the following documents need be annexed to the petition:
- The title deed; in exceptional cases, a document standing in place of the title deed
- The architectural project and the structural project
- The electrical and installation projects, together with the related drawings and calculations
- A benchmarked sketch; where none exists, a dimensioned sketch
The administration first examines the permit and its annexes. If no deficiency or error is identified, the permit is issued within thirty days at the latest from the date of the application. Where a deficiency or error is found, all such matters are notified to the applicant in writing within fifteen days following the date of the application. Once the deficiencies have been remedied, the permit must be issued within fifteen days at the latest from the renewed application.
The procedure for issuing permits in respect of public structures and facilities and of industrial facilities is separately regulated in Article 26 of the Zoning Act No. 3194, and rules of its own apply in that field.
Time Limits for Commencing and Completing Construction
Work on the structure must have been commenced within two years of the date of the permit. If construction is not embarked upon within that period, the permit obtained becomes void. Even where work has been commenced within two years, the permit likewise loses its validity if the construction is not completed within five years, that period including the time allowed for commencement. Where the permit has become void, continuing the construction depends on obtaining a fresh permit.
No further fee is collected in respect of the renewal of a permit or of plan amendment procedures. By contrast, where an increase has occurred in the construction area, or where there has been a change in the gross area or the characteristics of the independent units, the fee is recalculated and the amount previously paid is set off against that calculation.
Action for Annulment Against the Refusal Decision
Where a permit has been requested in due form yet the request has been unlawfully refused, an action for annulment may be brought before the administrative judiciary against that decision, which constitutes an administrative act. Interested parties may proceed directly to litigation, or they may prefer to apply to the administration beforehand. If the administration responds negatively, or gives no response at all within thirty days, the right of action is preserved. It must be emphasised that, where an application is made to the administration, the sixty-day time limit for bringing the action is suspended.
For a detailed treatment of actions for annulment before the administrative judiciary, our note titled “Objection to Administrative Acts and the Action for Annulment” may be consulted.
Bringing an action following an administrative application. Before an action is brought, the removal of the decision may be requested, within sixty days of notification of the refusal decision, from the superior authority; where there is no superior authority, the request is made to the administrative authority that established the decision. This application suspends the time limit for bringing the action that has already begun to run. If no response is given to the request within thirty days, the request is deemed to have been refused, and an action for annulment may be brought within the sixty-day period running from that date.
In the alternative scenario, the administration has expressly refused the request for removal addressed to it. In that case too, an action may be brought within sixty days of notification of the refusal decision.
Bringing an action directly. An action for annulment may be instituted within sixty days from the date on which the refusal decision was notified, without any application being made to the administration.
An application to the administration is not a mandatory stage but is left to the choice of the interested party. Those who wish may first apply to the administration and request the removal of the refusal decision, while those who wish may bring an action directly before the administrative court.
Grounds of Unlawfulness That May Be Raised in the Action
Interested parties whose lawful and procedurally proper permit requests have been unjustifiably refused may bring an action for annulment, and in that action they set out the unlawfulness of the refusal. Since refusal decisions are administrative acts, the defect must be pleaded in respect of one or more of the elements of competence, form, cause, subject matter and purpose. The content of the statement of claim is shaped by the grounds on which the administration relied in its refusal. Assessing a building permit in terms of the elements of an administrative act yields the following picture:
Competence — If a permit request is refused by an authority that has no power to decide, that decision is unlawful. Article 21(1) of the Zoning Act No. 3194 designates municipalities and governorships as the deciding authorities in respect of permit requests. Where the refusal decision has been taken by an authority other than these, the unlawful act must be annulled by the court.
Form — Refusal decisions must be duly notified to the person concerned; a decision established without notification being effected is unlawful. In addition, where the refusal requires a prior decision by another administrative authority and that decision has not been taken, the act is again defective. In such cases the administrative act, having become unlawful, must be annulled by the court.
Subject matter — The subject matter of an administrative act denotes the change produced in the legal order as a result of the act. The subject matter of a refusal must be legitimate and compliant with the legislation. For example, issuing a building permit for land that does not exist is unlawful in terms of the element of subject matter. Granting a permit to a person wishing to build on Treasury land is unlawful in the same way.
Purpose — The sole aim pursued by administrative acts is the public interest; acts are expected to satisfy this requirement. Refusing permit requests without regard to the public interest and solely on account of personal interests undermines the element of purpose and renders the refusal unlawful.
At this point it must be underlined that the annulment of zoning plans does not directly result in the annulment of a permit issued on the basis of that plan.
On the other hand, obtaining the permit and completing the structure in conformity with that permit is not sufficient for the structure to become usable. Once the construction has been completed in conformity with the permit granted, an occupancy certificate — that is, an occupancy permit — must be secured before the structure may be brought into use. Yet even where the construction has been completed in conformity with the permit and the application has been made lawfully, an occupancy request may still be refused. On this subject, our note titled “Refusal of a Request for an Occupancy Certificate (Occupancy Permit) and the Action for Annulment” may be examined.
Court with Subject-Matter and Territorial Jurisdiction
The administrative courts of the place to which the administration that issued the refusal decision is attached have subject-matter and territorial jurisdiction over an act refusing a request for an occupancy certificate, which is an administrative act.
Time Limit for Bringing the Action
An action seeking annulment must be brought within sixty days of the notification to the person concerned of any refusal decision that may be given in respect of a request for an occupancy certificate. This sixty-day period, which runs from notification, is preclusive as regards the bringing of the action. As explained above, where an application is made to the administration the time limit for bringing the action is suspended, and it resumes running once the administration issues a refusal decision.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Turkish law allows parties to defend and represent themselves in person before the courts; save for limited exceptions, there is no obligation to be represented by counsel. No such obligation is prescribed in respect of the administrative courts either.
Nevertheless, the complex structure of administrative law legislation, together with the short and strict time limits laid down in the Administrative Procedure Act No. 2577, gives rise to serious risks where the process is conducted by persons who are not lawyers. Irremediable errors may be made both procedurally and substantively. So that no rights are lost in administrative proceedings, which contain highly detailed rules, it is advisable to obtain the support of lawyers practising in the field of administrative law before any step is taken.
What should be done if a permit request is wrongfully refused?
Where it is considered that the request complied with the legislation and was unlawfully refused by the administration, an action for the annulment of the administrative act may be brought, within sixty days of the date of notification of the refusal, before the administrative court of the place where the administration that refused the application is situated. It is also possible to apply to the administration within the time limit for bringing the action, before resorting to litigation. If the administration refuses the application, the right of action is preserved.
What are the consequences of construction contrary to the permit?
A structure must be built in conformity with the zoning plan, with the permit issued in accordance with the relevant legislation, and with the architectural project annexed to the permit. Where a structure is being built without a permit or contrary to the project annexed to the permit and this is established by the administration, the construction is halted by the competent administration. The administration allows a period of time and requires the irregularities to be remedied. If the irregularities are not remedied within the period allowed, the demolition of the structure is ordered. Together with the demolition order, an administrative fine is also imposed on the owner of the structure. On this subject, our note titled “Objection to a Demolition Order and the Action for Annulment” may be examined.
Can a building permit issued to another person be annulled?
Everyone with an interest has the right to seek the annulment of a permit. For example, a person who considers that construction to be carried out on the basis of a permit obtained for a neighbouring immovable property will damage their own property may seek the annulment of the neighbour’s permit.
Can a permit be obtained without the owner’s consent?
Article 55 of the Regulation on Zoning in Planned Areas contains the following provision:
Regulation on Zoning in Planned Areas, Art. 55(8)
“No building permit may be issued, and no amendment may be made to the approved projects, without the consent of the owner or owners of the parcel to the permit and the approved projects annexed thereto.”
Pursuant to this provision, where a contractor prepares an architectural project contrary to the agreement made with the owners of the immovable property and obtains a permit on the basis of that project, the owners may seek the annulment of that permit.
Independent Legal Assessment
In permit disputes, the course of a file is generally determined by the nature of the administration’s grounds for refusal. Where missing documents or correctable project errors are at issue, whether the fifteen-day notification mechanism was operated becomes important; a refusal issued directly by the administration without duly notifying the deficiencies renders the act open to challenge on grounds of form. By contrast, where the refusal rests on the zoning plan or on the legal status of the parcel, the dispute turns into a substantive review of the plan.
The management of time limits is decisive in this field as well. Although the suspension of the time limit by an application to the administration affords interested parties an opportunity, miscalculating the date of implied refusal may cause the preclusive period to expire unnoticed. The headings that come to the fore in concrete files are as follows:
- Documenting the date of notification of the refusal decision and placing the sixty-day period under monitoring from the outset
- Verifying whether the administration notified the deficiencies in writing within fifteen days
- Confirming whether the parcel falls within the scope of an implementation zoning plan
- Setting out clearly in the statement of claim which element of the act is rendered defective by the grounds for refusal
- Monitoring the two-year commencement and five-year completion periods running from the permit so as to avert the risk of lapse
- Establishing the interest relationship in concrete terms in actions for annulment brought by third parties
Independent Legal provides legal advice and representation in disputes arising from zoning legislation, from the preparation of the permit application through to the conduct of proceedings before the administrative court.