A zoning plan is far more than a drawing exercise on paper; it is a design product grounded in sociological data that places the relationship between people and their environment at its centre, and it results in an interference with the right to private property justified by the public interest. Under our legislation these plans are treated within a tiered structure: the regional plan, the environmental plan, the master zoning plan and the implementation zoning plan. Where the administration disregards certain fundamental criteria when drawing up its plans and regulations, annulment of the plan may follow from the actions brought against it.
Where a court orders the annulment of a zoning plan, that ruling also produces consequences for the acts established on the basis of that plan. Even so, the annulment of the plan does not of itself automatically set aside an act adopted in accordance with it.
Below we examine, in turn, the types of plan in zoning law, the hierarchical relationship between them, the administrative and judicial remedies available against a plan, the capacity to bring an action, and the regime governing time limits.
Types of Plan in Zoning Law
Zoning regulation rests on the objective of planning that complies with technical, health and environmental conditions; plans are prepared on the basis of the Zoning Act No. 3194. In terms of the area they cover and the purpose they pursue, plans in zoning law fall under two headings:
- Regional plans
- Zoning plans (the master zoning plan and the implementation zoning plan)
Hierarchy Between Plans
Because plans are arranged in tiers, a hierarchical relationship exists between them.
The regional plan determines the development potential of settlements, socioeconomic development trends, sectoral targets and the distribution of activities and infrastructure. Where considered necessary, it is prepared by or on behalf of the State Planning Organisation.
The environmental plan sets out settlement and land use decisions concerning areas such as housing, industry, agriculture, tourism and transport, in a manner consistent with the decisions taken in the national and regional plans.
The master zoning plan is prepared in conformity with any existing regional plan or environmental plan. It is drawn on current maps, with the cadastral position marked where one exists, and shows the general forms of use of the parcels of land. Serving as the basis for the preparation of implementation zoning plans, it may be drawn up at scales between 1/5000 and 1/25000.
The implementation zoning plan is drawn on approved current maps, with the cadastral position marked where one exists, in accordance with the master zoning plan. It shows in detail the building blocks of the various districts, the roads, the phases required for implementation and other particulars. The scale of this plan is 1/1000.
As a natural consequence of this tiered structure, a plan at a lower tier must comply with the main planning principles and decisions adopted in the plan at the higher tier.
The Environmental Plan and the Master Zoning Plan
A master zoning plan may be prepared even where no environmental plan exists for the area. However, if the environmental plan — the higher-tier plan — is prepared subsequently and the existing master zoning plan conflicts with it, the master zoning plan must as a rule be amended.
The Master Zoning Plan and the Implementation Zoning Plan
An implementation zoning plan cannot be prepared in the absence of a master zoning plan. Conversely, the annulment of the master zoning plan for an area does not of itself set aside the implementation zoning plan prepared on the basis of it. In such a case the administration empowered to prepare the implementation plan assesses the position and, if it considers it necessary, revises the plan or repeals it.
Judicial Remedies Against Plans
Zoning plans are administrative acts. As examined in detail in our note titled Objections to Administrative Acts and the Action for Annulment, an action for annulment may be brought against zoning plans just as against the administration’s other acts and actions.
For examples of unlawfulness capable of rendering plans subject to an action for annulment, together with a detailed assessment of them, reference may be made to our note titled Grounds for the Annulment of Zoning Plans.
Is an Application to the Administration Required Before an Action?
Under Article 8 of the Zoning Act No. 3194, interested parties may object to plans for one month from the date of their publication. The municipal council examines the objections it receives within fifteen days and decides on them definitively.
For the purposes of the Administrative Procedure Act No. 2577, recourse to the objection procedure is not a mandatory remedy prior to an action for annulment. Persons who have not objected to the plan at all may therefore also bring an action seeking its annulment.
Capacity to Bring an Action
Since zoning applications closely concern the public interest, the requirement of capacity is assessed within that framework. Accordingly, civil society organisations such as trade unions and professional bodies have the capacity to bring actions on matters that concern their members and that fall within their constitutions.
In its judgment of 15 October 2015, Merits No. 2015/3346, Decision No. 2015/3526, the Assembly of Administrative Law Chambers of the Council of State likewise concluded, having regard to the founding purpose of the claimant trade union, that subjective capacity — the requirement of an interest — was present in the action brought.
The administration empowered to prepare the plan must be named as respondent in the action to be brought.
Requirement of a Final and Enforceable Act
Zoning plans enter into force upon approval in accordance with the procedure laid down in Article 8 of the Zoning Act No. 3194. For plans to become final, they must in addition be posted for public display and published for a period of one month. Although approval suffices for entry into force, finality depends on publication, and an action brought before the display period has expired is dismissed at the preliminary examination stage.
Court With Subject-Matter and Territorial Jurisdiction
As to subject-matter jurisdiction, since zoning plans are administrative acts, an action for annulment against them is brought before the administrative court. Where the plan has been made at ministerial level, however, because it constitutes a regulatory act to be applied nationwide, the action is heard by the Council of State sitting as a court of first instance under Article 24 of the Council of State Act.
As to territorial jurisdiction, the administrative court for the place where the immovable property covered by the plan is situated has jurisdiction.
Time Limit for Bringing an Action
Where an objection to the plan has been lodged within the one-month display period, the time limit for bringing an action starts to run from the notification of the implied or express rejection.
Because an application to the administration is not a mandatory remedy, an action may be brought within sixty days of the expiry of the display period even if no objection has been lodged against the plan.
Since zoning plans are regulatory acts, under Article 7(4) of the Administrative Procedure Act No. 2577 the time limit for bringing an action begins on the day following the date of publication. Nevertheless, the time limit may revive upon the application of the regulatory act. Detailed information on this point appears in our note titled The Revival of the Time Limit for Bringing an Action Before the Administrative Courts.
Frequently Asked Questions
Is representation by a lawyer mandatory in an action before the administrative court?
Under Turkish law the parties may defend themselves in person before the court; save for certain exceptions, there is no obligation to be represented by a lawyer. Nor is there any obligation to retain a lawyer practising in administrative law for proceedings before the administrative courts.
That said, the complexity of administrative law legislation and the short, strict time limits in the Administrative Procedure Act No. 2577 mean that conducting the process without a lawyer may lead to errors of form and substance that are difficult to remedy. In order to avoid the loss of rights in administrative proceedings governed by detailed rules, it is advisable to obtain support from lawyers practising in administrative law before taking any step.
Is subdivision or consolidation possible in an area where no zoning implementation has taken place?
In an area covered by a zoning plan but which has not previously been subject to a zoning implementation, Article 18 of the Zoning Act No. 3194 must be applied first. The subdivision or consolidation procedures under Articles 15 and 16 of the Act may be carried out only in areas where an application under Article 18 has already been made in conformity with the zoning plan.
What happens if the master zoning plan conflicts with an environmental plan prepared later?
Under the hierarchy between plans, the master zoning plan must be consistent with the environmental plan. If the master zoning plan conflicts with an environmental plan prepared after it, it must be amended so as to be brought into line with that plan.
Within what period must the parcelling plan be prepared?
Parcelling plans must be prepared and approved within five years of the zoning plans becoming final.
May a share in a green area be allocated after parcelling?
Once a parcelling arrangement has been completed in an area, the owner of the immovable property must be allocated a share in a development parcel on which building is possible. Allocating a share in a green area or a park instead of a share in a building block, where a share in the latter should have been allocated, renders the parcelling procedure unlawful.
Is an earlier relinquishment deducted from the development contribution share?
A donation made by the owners at the time of the consolidation and subdivision of the original parcels must be set off against the development contribution share to be taken from the immovable property. Making an excessive deduction by disregarding an earlier relinquishment is unlawful and may lead to the annulment of the parcelling procedure.
Independent Legal Assessment
The problem most frequently encountered in disputes concerning zoning plans is that the action fails on procedural grounds even though the substantive arguments are strong. An action brought before the display period has expired is dismissed at the preliminary examination; missing the sixty-day period that runs from the expiry of the display period causes the file to be closed without the merits being examined at all. Obtaining documentary evidence from the administration of the dates on which the plan was posted and taken down should therefore be regarded as the first step in the process.
The second critical question is which tier of plan to challenge. The true source of a grievance arising from an implementation zoning plan is very often a decision contained in the master zoning plan or the environmental plan. Bringing an action against the lower-tier plan alone may not produce a lasting result, since the higher-tier plan remains in force.
In a specific file it is appropriate to give priority to the following points:
- Documenting the start and end dates of the public display through administrative records
- Where the objection procedure is to be used, monitoring the one-month period and the council’s fifteen-day period of examination
- Identifying the tier of plan in which the dispute originates and directing the action accordingly
- Correctly identifying the administration empowered to make the plan and naming the respondent accordingly
- Bearing in mind that, where a ministerial act is involved, the Council of State is the court with jurisdiction
- Setting out concretely, in the request for a stay of execution, the de facto situation that construction based on the plan would create
Independent Legal provides advisory services and conducts litigation throughout the whole process in disputes arising from zoning law, from monitoring the plan display procedure to conducting the action for annulment.