Zoning Pollution and the Quality of a “Building”
It should first be noted that the offence of “causing zoning pollution”, governed by article 184 of the Turkish Penal Code, targets those who construct, or have constructed, a building without a building permit or contrary to the permit. As emphasised in the decision of the 4th Criminal Chamber of the Court of Cassation with case no. 2021/19921, not every kind of unpermitted work can be regarded as having the quality of a “building”. Accordingly, the existence of a zoning irregularity in the whole or in part of a building does not directly render the legal status of the other independent units in that building “null and void”; it does, however, create serious obstacles in administrative processes.
The Administrative Obstacle in Obtaining a Licence: the “Principle of Integrity”
Business opening and operating licences, as a rule, require the building to hold a building permit and an occupancy permit (yapı kullanma izin belgesi). As stated in the decision of the 18th Criminal Chamber of the Court of Cassation with case no. 2019/3413, substantial alterations affecting the load-bearing system of the building or changing the construction area are subject to a permit. If the zoning pollution in the building affects the load-bearing system in which the independent unit in question is located, or the general project, the municipal administration may, by virtue of the “principle of integrity”, refuse new licence applications on the ground that the entire building is contrary to its project.
The adverse effects of construction activities on neighbours are not only physical; they also give rise to administrative and economic consequences. An irregularity in one part of a building may cause the whole building to be labelled as “contrary to zoning legislation” and, consequently, may lead the administration to exercise its “discretionary power” unfavourably in applications such as those for a business opening licence.
Judicial Review and the Importance of Expert Reports
In practice, whether zoning pollution in a building constitutes an obstacle to a business licence is a matter requiring technical examination. As emphasised in the settled case law of the Court of Cassation (for example, in the decisions of the 4th Criminal Chamber with case nos. 2021/41894 and 2021/21797), whether the works at issue impair the structural stability of the building, whether they create new floor area and whether they have the quality of a “building” within the meaning of article 5 of the Zoning Act no. 3194 must without fail be reported on by expert witnesses. If the expert determines that the irregularity affects only a particular independent unit and does not endanger the general structural safety of the building, it may be argued that no legal obstacle should remain to the other owners obtaining a licence.
The ECtHR Perspective and the Right to Property
In one of its judgments, the European Court of Human Rights (ECtHR) considered that zoning irregularities on a neighbouring property (for example, the blocking of a sea view or a failure to comply with height restrictions) may constitute an interference with the right to property. Along the same lines, an owner who is unable to obtain a business licence because of zoning pollution in the building may apply to the administrative courts on the claim that this restriction limits their right to property in an “unfair” manner.
Important Reminder: This blog post is for information purposes and does not have the character of legal advice.
