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Examination About Construction Plans And Annulment Processes

Examination About Construction Plans And Annulment Processes

Examination About Construction Plans And Annulment Processes

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According to the Construction Law No. 3194, article 6 with the title “Spatial planning stages”, Spatial plans consist of “Landscaping Plans” and “Construction Plans” stages in accordance with the Spatial Strategy Plans in terms of the area they involve and their purposes. However, construction plans are prepared as land use plans and implementary development plans. Each plan is prepared in accordance with the one in upper stage. Accordingly, while Implementary Development Plans are needed to be prepared in accordance with the Land Use Plans; Land Use Plans are needed to be prepared according to the Landscaping Plans. The Plans are defined in Article no.5 of the Law. In general;

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Implementary Development Plan: “The plan which is drawn up on approved base maps showing their cadastral situation (if available) according to the land use plan principles and showing the building blocks, density and order, application stages to form a basis for construction application programs of various areas required for the application and other information with its details.” This plan is in 1/1000 scale.
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Land Use Plan: “The plan which is prepared on base maps in accordance with the general principles of regional plans regarding the place if available and environmental plans if available and prepared for the purpose of showing the general usage forms of the patches, development directions and growths, population densities, thresholds and transportation systems of the building areas and prepared to form a base in preparation of implementary development plans and form a whole with plan provisions and report.” This plan may be between 1/5000 and 1/25000 scale.
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Environmental Plan: “The plan determining the principles and criteria within the frame of general land use decisions leading the subscale plans regarding settlement, extension areas and sectors in accordance with the targets and strategies of spatial strategy plans in available.”
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Spatial Strategy Plan: “The plan which is conducting the physical development and sectoral decisions by associating the economic, social policies and environmental policies and strategies with the place, prepared in the whole country and required areas and which is integrated with its report.”

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Construction Plans are recognized as regulatory acts by the administrative justice[1]. An important consequence of the fact that construction plans are recognized as regulatory acts is that these plans do not create vested rights with regards to persons. Regulatory acts establish general, abstract and continuous rules and it is always possible to amend and suspend them differently from the administrative acts whose amendment and suspending is depended on some conditions[2]
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Just as any other transaction and act of the administration is open to judicial review, construction plans are open to the judicial reviews as well. For this reason, the trials for the annulment of construction plans stay within the assigned position of the administrative jurisdiction. However, authority matter regarding the trials are regulated in AJPL. Article 34. “The authorized court in the enforcement of legislations regarding the real assets like reconstruction, expropriation, destruction, occupation, consecration, certification and location or all kinds of rights related to these or public goods is administrative court.” However, filing a case is not the only way to follow against construction plans, contention of unconstitutionality is an optional choice against the construction plans. As stated in Construction Law article 8, the plans are announced in the announcement sites determined by the mayoralty and online pages of the related administrations beginning from the approval date for one month. These concerned may object to the plans within this one-month announcement period. Municipal council examines the objections sent to the council by the mayoralty and the plans within fifteen days and make a definite judgement. These concerned may choose the objection way and file a case within 60 days beginning from the received objection response as well as they may open an objection case directly without objecting within 60 days beginning from the day the construction plan is unslung.

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Annulment reasons to be submitted in annulment suits may be the fact that administrative acts be illegal in terms of authorization, shape, reason, matter and purpose factors. Especially purpose factor has importance in terms of construction plans. As in any other administrative act, the purpose of the construction plans is public welfare. Besides that, purpose factor and public welfare are grounded with state council decisions. The suitability of construction plans with the reasons like urbanism principles, planning facts, integrity of the construction plan, suitability with the planning stages, qualifications of the comprehended area and protection of the environment has been recently preferable[3].
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As a result of the annulment of construction plan, the situation of the certificates is also affected. However, whether the granted certificate is annulled depending on the annulment of the plan is controversial and there is no consensus among the Council of States about this matter. According to Sahin, the fact that the construction plan is annulled by judicial authority does not invalidate the construction certificate granted with regard to the subject plan by itself. In the same way, it does not give the Administration the opportunity to annul the subject certificate in a way to affect the past, in other words, to result in a way to revocation, after the term of litigation (or “reasonable time” indicated in some of precedents of the state council) without considering the established situations. [4]

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[1] “Imar planlarinin nitelikleri itibariyle düzenleyici islem olduklari Danistay’in süregelen içtihatlari ile kabul edilmis bulunmaktadir”. D. 6. D., E. 1997/4802, K. 1998/4766, T. 21.10.1998.

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[2] M. Ayhan Tekinsoy, “Imar Planlarinin Hukuksal Niteligi, Imar Plani Iptalinin Bu Plana Dayanilarak Verilmis Ruhsatlar Üzerindeki  Etkisi”, Ankara Barosu Dergisi, Yil: 66, Sayi: 2, Bahar 2008, 46-56.

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[3] Danistay 6. Dairesi 26.10.2005 tarih, 2004/422 E. 2005/5127 K. Sayili ilami

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[4] Cenk Sahin, Danistay Kararlarina Göre Imar Planinin Yargi Yerince Iptal Edilmesinin Yapinin Hukuki Durumuna Etkisi – Elestirel Bir Bakis, Istanbul Hukuk Mecmuasi 2018

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