A petition against decisions not to provide construction incentives under TAMA 38 for a building that never had a formal building permit was rejected.
Oct 22, 2018
By: Adv. Shlomi Hadar – John Geva, Hadar & Co. Law Firm
At the Tel Aviv-Jaffa District Court, sitting as an administrative court, an administrative petition was heard by a company (hereinafter: “the Petitioner”) against the Local Planning Committee of Ramat Hasharon and against the Appeals Committee for Planning and Construction, Tel Aviv District (hereinafter: “the Respondents”). The judgment was delivered on October 5, 2018, by the Honorable Judge Haggai Barner, Vice President.
Case Facts The local committee refused a request for a permit for demolition and reconstruction under TAMA 38 and Plan Res/3838, concerning a three-story apartment building with nine units, constructed in the second half of the 1970s (hereinafter: “the Building”), on the grounds that the building had been erected without a building permit.
Claims of the Parties
Petitioner’s arguments:
Although the Petitioner was unable to locate the original building permit, in practice the contractor paid all required fees and levies to the Ramat Hasharon Local Council in 1976, which later became a municipality.
The municipality itself treated the building as if it had been legally permitted, allowing connection to the electricity network, occupation by tenants, and later registration as a condominium.
In 1976, the contractor was indeed indicted for constructing the building without a permit, and a judicial demolition order was issued. However, the building was not demolished, the contractor’s deficiencies were corrected, and only some technical failure prevented formal issuance of the building permit.
Furthermore, in 2000, the local committee decided to retroactively validate the building permit for the building to allow new construction additions on its roof. Therefore, under the principle of presumption of validity of administrative acts, it should be held that the building was constructed legally, since the committee would not have approved additional construction if the building had been illegal.
The Petitioner also argued that the local committee and appeals committee should have considered the situation of the residents, who should not, through no fault of their own, bear the consequences of the contractor’s failure to obtain a formal building permit.
Finally, the Petitioner claimed that the previous courts should have considered the purpose of TAMA 38, namely strengthening buildings against earthquakes—a purpose that cannot be fulfilled if the Petitioner is denied the construction incentives under TAMA 38, as the residents lack the financial capacity to strengthen the building themselves.
Respondents’ arguments:
The court should not interfere in planning authorities’ decisions unless a procedural flaw is found. The current case does not justify such intervention.
Additionally, the respondents claimed that the building never had a valid permit, and under current law, the Petitioner cannot receive TAMA 38 construction incentives, since a prerequisite is that the building was legally constructed under a permit issued before 1980.
Discussion and decision
In the present case, the respondents determined that the building does not and has never had a building permit and therefore the petitioner is not entitled to construction incentives under TAMA 38 and Plan RASH/3838. According to the court, this is a clear factual determination and it is not the court's course to interfere with it.
However, the court announced that it had re-examined the evidence on the merits of the case to determine whether there was an error in the respondents' decisions. This examination revealed that the respondents' determination was legally sound, based on the following reasons:
First, the court reviewed the historical course of events and determined that both the contractor and the building's past tenants attempted to resume the matter, abandoned this matter, and lost all interest in retrospecting the construction.
According to the court: " It is not reasonable to assume that there was a building permit for the building at the time and that over the years it was lost, because as early as 1979, very close to the date of construction, the deputy head of the council noted that the building was built without a permit, and the documents from 1981-1982 also indicate that it was known to everyone, including the contractor and one of the tenants, that the building did not have a building permit ."
In addition, the court ruled that the petitioner did not prove that the reason for not receiving the building permit was due to a purely technical failure.
Based on this conclusion, i.e., that the building does not have and never had a building permit, the court ruled that the incentives granted to buildings whose construction permit was issued before January 1, 1980 cannot be applied to the building, as this is in complete contradiction to the provisions of TAMA 38 and the provisions of Plan Rash/3838. Furthermore, since there is no building permit for the building, the provisions of TAMA 38 cannot apply to the building at all, even without building incentives.
According to the court, the petitioner seeks to use a legal fiction whereby it will be determined that the building should be seen as if it had received a building permit before January 1, 1980. The court did not support this, stating that " there is no justification for this and it is a matter of legal torpor intended to overcome the express provisions of TAMA 38 and of Plan Rash/3838. There is no legal time tunnel in which the state of affairs can be rolled back ."
Regarding the petitioner's claim that it should be determined that the building was built lawfully, by virtue of the presumption of the validity of the administrative act, since it is presumed that the local committee would not have approved in 2000 an addition to a building that was built unlawfully, the court determined that the reason the municipality approved the construction addition lies solely in the desire to assist the tenant who wanted to build on the roof, without the municipality confirming that the entire building was built lawfully in real time.
The court added that it did not lose sight of the " extreme leniency " with which the municipality treated a building that was built without a permit, but accepting the contractor's construction delinquency and repeated attempts to solve the tenants' problem do not create rights under TAMA 38.
In addition, it was determined that the proper goal of TAMA 38, strengthening buildings against earthquakes, is not the end all and does not justify the means, certainly not when it involves a clear violation of the rule of law.
In conclusion
The petition was rejected. As of this writing, it is unknown whether an appeal has been filed with the Supreme Court.
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