How are restrictions on development and designated use enforced?
The deadline for execution of the works is established in the licence or permit itself. The deadline may be extended. If the works are not completed within the deadline or within the deadline resulting from the extension, the licence may expire.
As a rule, the use permit does not have a deadline.
Each state has an enforcement regime involving the grant of enforcement or other orders requiring compliance or infringement notices imposing fines. The relevant courts and tribunals of each state may make orders requiring compliance. Prosecutions may also be brought in the relevant courts in relation to breaches of controls.
In the Flemish Region, a new Enforcement Decree has been adopted by the Flemish Parliament and will come into force on 1 March 2018. This decree contains a list of very specific enforcement measures. In summary, the decree provides for criminal sanctions against persons who violate the provisions of the decree (eg building without a permit or erected not in compliance with a permit and its conditions), and grants police officers as well as other ‘authorized’ officers the authority to carry out inspections. The decree further grants such persons standing before the Courts to apply for ‘restitution measures’, of which there are several. These measures include:
Furthermore, also administrative sanctions may be imposed after a motion of mistrial of the public prosecutor.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004, includes a chapter on ‘crimes and penalties’. This chapter contains very similar measures to those of the Flemish regime. In summary, the Brussels Code provides for criminal sanctions for violations of certain provisions of the code (eg building without a building permit or not respecting such permit and its conditions). The list of crimes is the same as the list in the Flemish Decree. The Brussels Code grants police officers and other authorized officers the authority to carry out inspections, and grants the officers the ability to apply to the Courts for a claim for ‘restitution measures’.
In the Walloon Region, the Code for Territorial Development includes a chapter on ‘violations and sanctions’. The list of violations and sanctions is similar as in the Flemish and Brussels regime. The police officers and the authorized officers are granted the same powers as in the Flanders and Brussels Capital Region. The ‘restitution measures’ they can seek are the same as those that can be sought in Flanders and in Brussels.
Restrictions on development and use are enforced by the Urban Construction Inspectorate which has the authority to bring the development to a halt if it discovers any irregularities. The inspectorate can also demand that steps be taken in order to correct any irregularities. In such instances the developer can file a complaint with the relevant Ministry. The Ministry’s decision can be challenged through administrative procedures.
Any land subject to a permit must be developed strictly in accordance with any permits issued and the designated use of the land. Fines for non-compliance may be imposed, and the local authority may bring civil proceedings in court against the owner of the subject land to enforce compliance.
In certain areas, third parties may apply to court to enforce local government development controls. The law surrounding the standing of third parties to enforce development controls is complex and varies across provinces and local governments; however, third parties would generally be required to show that they are affected by the applicable control in order to have standing to seek enforcement.
Where an individual land use right owner develops or uses land in breach of the relevant land grant agreement, the Land Administration Bureau may revoke the use rights and take possession of all real estate, such as buildings or fixtures, on the relevant piece of land without compensation.
A construction inspection may, in case of irregularities, order:
In addition to this, fines may be ordered to be paid by the investor and by other involved parties (such as the contractor, designer or supervisor) for breaches of the Act on Construction.
Local planning authorities have the power to enforce compliance. There are fines for non-compliance and, as a last resort, an order can be made that a structure, landscaping arrangement and/or installation is to be removed.
During the last decade, more and more focus has been put on enforcement. Enforcement works quite efficiently in general, but the method of enforcement varies between municipalities and includes fines and physical intervention such as demolition of illegal buildings.
Local planning authorities have power to serve enforcement notices requiring the cessation of the works carried out without planning permission or in breach of permission.
There are criminal law sanctions (fines and, in some cases, imprisonment) for non-compliance and a court injunction may be obtained against the owner of the relevant land to enforce compliance (these measures can include a demolition order, a prohibition on reconstructing the building in the event of destruction, or a prohibition on obtaining new planning permissions on the site).
Local planning authorities can take the following steps to enforce restrictions:
The Planning Department has enforcement powers under the TPO against unauthorized developments. The Central Enforcement and Prosecution Section of the Planning Department is also responsible for undertaking enforcement and prosecution actions against unauthorized developments. There are fines for non-compliance and the developer can be required to reinstate the land. If this is ignored, the Director of Planning can enter the land and take whatever steps he considers necessary to ensure that the unauthorized development or use is removed or discontinued. This includes taking possession of, removing, detaining and disposing of property on the land.
Unauthorized building works carried out without obtaining prior approval from the Building Authority can also be ordered to be removed by the government at the developer’s cost and may result in a defective title on that piece of land.
The building authority has the power to stop the construction works or to levy fines on the developer for non-compliance, or to oblige the developer to perform re-building works in order to make the construction compliant with legal and professional rules, and as an ultimate means of enforcement, may order the demolition of the construction works/structures (eg building without permission when permission is required or exceeding the scope of the issued permit).
Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.
Where an unauthorised development may have been or has been carried out, a warning letter may be sent by the appropriate planning authority demanding an explanation or response from the party concerned within four weeks and outlining the penalties and cost implications involved.
The Planning Authority shall then make a decision on whether to issue an enforcement notice, which is effectively a stop order on any ongoing unauthorised development or may require the demolition of any unauthorised structure. The exercise of this power is a discretionary decision on behalf of the Planning Authority.
The penalties for unauthorised development increased with the introduction of the 2010 Act and now the penalties involved for an offence here are:
In addition, the 2010 Act imposes a greater onus on local authorities to pursue non-compliant developments either by issuing an enforcement notice or issuing Section 160 injunctive proceedings. Upon an application made pursuant to Section 160, the Circuit or High Court may, by order, require any person to do or not to do, or to cease to do, anything that the Court considers necessary to ensure, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development; and
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject .
The municipalities are entitled to issue specific measures in order to prosecute breaches of building and town planning regulations, which vary from a simple fine to an order for the demolition of the unauthorized works. In the case of a work commencement notice, the municipality can also issue a warning within 30 days from the submission of the application, in order to prohibit the commencement of the works. Where a certified work commencement notice has been submitted, the municipality can prohibit the continuation of the works in the 30-day period following the submission of the notice or, should the activity pose a risk to health, the environment, etc, beyond the expiry of that 30-day period.
If a contractor breaches any building regulation, the relevant local government and the MLIT may order the contractor to take measures necessary to correct the breach. Such measures include: (i) suspension of the construction and (ii) demolishment, removal or reconstruction of the building.
The planning authorities have several ways to enforce restrictions on development and designated use:
The appropriate Building Control Department or Authority in the Federal Capital Territory and the respective States are responsible for enforcing restrictions on development and designated use. The relevant Authority will issue enforcement notices and serve on the owner of the property for a development that is commenced without planning and building control authorization or where the building constitutes danger to occupiers or the public.
An enforcement notice will contain the restrictions breached and stipulate a deadline for compliance with the regulations or remedial measures to be carried out. A ‘stop work order’ may be issued if the development does not comply with the planning permit issued for the purpose. The contravention of Physical Planning Regulations may cause the demolition of the building at costs to be paid by the owner or forfeiture to the property.
In Lagos state, criminal prosecution is prescribed for a contravention of the provisions of the Physical Planning laws and regulations.
Upon the completion date, the constructor must complete a final control check and confirm that. project has been carried out in accordance with the permission and current provisions. Based on this confirmation the municipality shall issue a certificate of completion. The project must not be used before a certificate of completion or a provisional permission for use has been issued.
If minor deficiencies are found, provisional permission for use may nevertheless be granted when the municipality finds this unobjectionable. In such cases, the deficiencies shall be remedied within a time limit stipulated by the municipality. A provisional permission for use should always be followed up by a certificate of completion.
If a premise lacks a certificate of completion, and a provisional permission for use has not been granted, it is illegal to use the premises. The planning and building authorities may, in such event, prohibit the continuation of the unlawful use by instructing a close-down and/or impose a fine.
If the instruction given by the local planning and building authorities is not carried out, the authorities can also:
Furthermore, the person responsible can receive fines, be reported to the police and be liable to pay compensation.
In the event of land being developed without obtaining planning permission and/or a building permit, a competent public authority may order the owner or beneficial occupier (under an interest in land created for a defined purpose and a specified term) to suspend its use of the land, indicating a time limit within which the owner or occupier is obliged to file an application for a planning permit and pay the 'legalization' fee. Alternatively, the public authority may order the restoration of the land to its original condition.
If urban standards are infringed, the Municipality has the power to impose an embargo, correction works, demolition and cessation of use. If such orders are not complied with, they may be enforced by the Municipality at the offender’s expense.
The Municipality may also impose fines for the infringements.
The public control of construction works is performed by the State Inspectorate of Construction and by other competent authorities through inspections carried out at the construction sites during the entire development.
The State Inspectorate of Construction and the authority that issued the building permit must be notified when the construction works start. Moreover, the reception handover protocol on the completion of the construction works is signed only if the requirements set out by the building permit have been fulfilled. The handover protocol is signed by a commission which must comprise the following members: a representative of the investor, a representative of the local authority and 1-3 specialists in the construction field. In certain situations the structure of the reception commission must be extended, by including the following additional members, as follows: (i) a representative of the State Inspectorate in Constructions, in case of the reception of buildings of high importance or in case of the reception of low importance buildings of public or social interest financed in whole or in part from public funds or in case of intervention to such buildings; (ii) a representative appointed by the inspectorates for emergency situations, for the constructions falling under the Law no. 307/2006 on fire prevention; (iii) a representative appointed by the county/Bucharest culture departments, for constructions included in the list of historical monuments (iv) a designated representative by the main credit release authority in case of the reception of buildings of high importance or in case of intervention to such buildings financed in whole or in part from public funds and for which the approval of the technical documentation is in the competence of the government.
Furthermore, any interested person may file with the administrative courts of law a claim in order to challenge any acts of the relevant authority.
Non-compliance by a developer with the relevant permits and authorizations is punished by an administrative fine (and also by the refusal of the authorities to acknowledge the completion of the building. Such refusal of the authorities would impede on the Land Book registration of the building and also preclude the owner from using the building in accordance with its designated use.
As regards building permits the Building Act only regulates the termination of the validity of the permit, which is conditional upon the commencement of the construction work. The construction work, development works or maintenance works must commence within two years from the date of issue of the building permit, unless the relevant building office stipulates a longer period within which work must commence. Once such periods of time have elapsed without work being commenced, the building permit becomes invalid and a new licence must be obtained for completing the works.
The Building Act also regulates the limitation period where only the notification regime for construction and development works applies. In such cases, the works must be commenced within two years from the delivery of the notification by the building office that it has no objection to the intended works, unless the building office prescribes otherwise.
There is no duration for the validity of the permission to develop a designated use. The use permitted by an occupancy permit has no limit in time if the activity is developed in accordance with the details of the project submitted for the obtaining of the permit. If those details change or a designated use changes or is expected to be changed, it is necessary to obtain a new occupancy permit and where necessary, in relation to construction works, apply for the building permit.
As of 1 July 2016, a new Building Act introducing major amendments should become effective.
Local planning authorities have the power to serve enforcement notices requiring the cessation of the breach of planning regulations. There are monetary sanctions for non-compliance and ultimately an injunction may be obtained against the owner to enforce compliance.
The relevant board of the municipality has power to serve enforcement notices requiring the cessation of the breach of planning control. Liquidated damages may be payable for non-compliance and ultimately an injunction may be obtained against the owner of the relevant land to enforce compliance.
The local authorities have the power to enforce restrictions on the developer if the permitted building has not been constructed according to the approved blueprints and layout.
The Department of Municipal Affairs can order a contractor to stop work and in extreme cases, demolish unapproved structures. This is likely to be established during an inspection prior to the grant of a Municipal Completion Certificate (see Other relevant statutory permits for more information).
The Executive Council of Abu Dhabi published a resolution on 30 August 2012 (Ref: 1-42/841) enacting specified time limits for the validity of planning approvals issued by the Abu Dhabi Urban Planning Council (UPC) with retrospective effect.
As a result, all UPC approvals issued after 30 August 2012 are subject to specified time limits during which construction works must be commenced. The time limit depends on the type of project in question:
UPC approvals issued before the new law came into effect are also deemed retrospectively to be subject to these time limits. The clock starts running from 30 August 2012, meaning that approvals issued before this date will automatically expire on 30 August 2014 (in the case of Individual Projects) or 30 August 2015 (in the case of Master Plans).
If construction works are not commenced within the prescribed period, the UPC approval will automatically expire. Although developers will be entitled to re-apply, there is no guarantee that a new approval will be forthcoming from the UPC. Even if it is, such new approval may be granted on substantially different terms to the original approval, especially if the development plan for the area in question has changed in the interim. In any event, any new application will necessarily involve additional time and money cost.
The Dubai Municipality can order a contractor to stop work and in extreme cases, demolish un-approved structures. This is likely to be established during an inspection prior to the grant of a completion certificate.
Local planning authorities have power to serve enforcement notices requiring the cessation (and removal) of development or changes of use carried out without planning permission, or without compliance with conditions attached to a permission. There are fines for non-compliance, which can be prosecuted as a criminal offence, and an injunction may be obtained from the High Court against the owner of the subject land to enforce compliance. In addition, any benefit received from a breach of planning law may be subject to a confiscation order as proceeds of crime.
Local planning authorities have power to serve enforcement notices requiring the cessation of the breach of planning control. Breach of an enforcement notice is an offence. Planning authorities have power to issue stop notices to stop a serious breach of planning control. There are fines for non-compliance and ultimately an interdict may be obtained against the owner of the subject land to enforce compliance.
Under Ukrainian law planning restrictions on development over construction sites should be considered by the developer and the architect while developing the planning documentation. At the stage of approval of the planning documentation state bodies are entitled to set additional restrictions that should be taken into consideration during the construction stage.
The local departments of the State inspection of architecture and town planning of Ukraine (the newly created state authority that have to replace State Architectural and Construction Inspectorate of Ukraine) and the architectural departments of the local municipal authorities are entitled to monitor the compliance of construction works being carried out in accordance with the planning documentation (including with regard to the established restrictions on development and designated use). In cases of breach of construction requirements and/or restrictions stipulated by planning documentation or additional restrictions stipulated by relevant authorities, developers could be forced to remedy such breaches (by means of orders issued by competent authorities as well as through court procedures). Additionally, depending on the character of such violations, they may be fined up to 900 times the subsistence level for employable persons (about UAH 1.8 million).
Local planning authorities have the power to serve notices of violation requiring the cessation of the violation of applicable ordinances. In many jurisdictions, another very effective enforcement mechanism is to stop the issuance of any additional approvals, permits, licenses, occupancy permits (or revoking any issued in error), thereby “holding hostage” any project unless and until compliance occurs. Fines for non-compliance may be imposed, and the local authority may obtain an injunction against the owner of the subject land to enforce compliance. Some states authorise third parties to enforce zoning ordinances, typically in the form of injunctive relief.
Restrictions on development are enforced by the local planning authority. It has all the rights to restrict any development in line with the Regional Town and Country Planning Act [Chapter 29:12]. However, in the event that it enforces some restrictions, it provides written reasons regarding why it enforced that restriction.