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Mesrutiyet Avenue, Ersoy Business Center, No: 102/11-12 Floor: 5 Beyoglu 34420 ISTANBUL / TURKEY


February 24, 20150

A development plan is an essential element in all construction projects which indicates how a building should be built. In a residential area, how a land should be used is determined by means of development plans made by municipalities and in some cases by public entities and ministries. Development plans can be divided into two groups. They are namely, regulatory development plans and implementary development plans.

A Regulatory Development Plan is drawn on the approved present maps in order to display general use of lands such as residence, trading, industrial areas, and green areas; main types of zones, the future population in the areas, population density and if necessary building density of the zones, various residence areas,development direction, capacity, related principles, transport systems and it is also a basis to implementary development plans.

However, an implementary development plan is drawn on the approved maps and contains cadastral informations if they exist. It is prepared in pursuant of the regulatory development plan and shows several areas, city blocks, their density and arrangement, roads and implementary stages which are essential for the development implementary programme and its substance with other detailed information and it is completed a report arranged by 1/1000 scale.

It should be underlined that, development plans are prepared for the purpose of providing the best physical environment with consideration of priorities of human life and regional priorities that have a huge impact on the community life; in addition they are prepared to conduct choosing various buildings, refreshment areas and green areas, development tendency and protect land and to determine the balance of using lands the most appropriate way. Unplanned and rapid urbanization hinder a healthy urbanization in accordance with the increasing population. Public parks, children playgrounds, areas used for only one day, picnic and green areas are necessary elements which are provided by the plans in order to create and maintain modern cities, prevent impacts of excessive urbanization, provide the said services for the whole city and improving the city’s structure and urbanization quality which finally result in constituting a healthy environment.

At the time of the preparation of a development plan, the future population for the coming 20-30 years and their need to live, work, rest and transportation are forecasted and calculated. Again, the residence, industry, trading, green and open areas, social and cultural areas; in addition roads, car parks and other areas that are constituting the social and technical substructure are also shown in the plan. However, development plans may be changed in consideration of various reasons as a result of new needs of city functions through the methods designated in the law.

Generally, implementary and development plans are drawn by related municipalities and they are entered into force upon approval of the municipal council. These plans are announced for a month at the announcement places determined by the mayoralty in order for the plans to be seen and if necessary to be objected by persons concerned. Consequently, decisions taken on development plans by a county council are entered into force upon approval of the metropolitan mayor.

On the other hand, persons who have learned about the development plans within the mentioned time limit or have learned about the zoning status from the planning permission may file a law suit and claim nullity of the plan within 60 days if the plan is contrary to city planning principles. Article 7 of Act no 2577 of Administrative Procedure Law , with the title of Term of Litigation states that, the term of litigation is 60 days at the Council of State and administrative courts unless the term of litigation is specifically determined in the special statutes. It further states that, this time limit starts from following day of the announcement. This is only if the regulatory administrative acts announcement is necessary in the case. Besides that, article 11 of the said act with title of Application to the Upper Authorities expresses that, before filing a law suit at court, a person concerned may apply to the upper authority and claim to cancel, withdraw, change or transact a new act, of course this is if there is an upper authority. However, the person concerned may also apply to the administrative body which constituted the act in question within the term of litigation. In this way, the accepted principle is, upon an application the term for litigation stops and if it is not responded within 60 days, it is deemed that the claim was rejected. Again, article 10 of the Act regulates that The persons concerned may apply to the administrative authorities in order for an act to be transacted or performed which may be subjected to the administrative action. If it is not responded within 60 days it is deemed that the claim was rejected. Depending on the dispute, the persons concerned may bring an action at the Court of Council or administrative courts or tax courts within the term for litigation that starts from the expiration of 60 days. If an answer is provided within 60 days by the administrative authority and is not definite, the persons concerned can assume the claim in question was rejected and may open a suit or he/she may choose to wait for a definite answer. In this case, the term for litigation stops. However, the waiting time cannot exceed 6 months from the application date. On the contrary if no law suit is brought or the law suit was dismissed because of the expiration of the time limit, and the administrative authority provides an answer after the expiration of 60 days, an administrative action may also be brought within 60 days from the written notice.

In direction of the mentioned articles above, application within the context of article 11 of Act no 2577, it is seen that , article 8/b of Act no 3194 Development Plan Law determines a specific period for objection. Therefore, it should be concluded that, in the context of article 11 of Act no 2577, the application should be made against the development plan within a month from the announcement or if there is no answer given within 60 days starting from the last announcement date, it means that the application was rejected. Upon this, an administrative action should be brought in the following 60 days which is the term for litigation. It can also be concluded that, if the application was rejected by providing an answer in 60 days from the last announcement date, an administrative action can be taken within 60 days from the date of answer given. If any objection was not made against the development plans, in accordance with article 7 of Act no 2577, the action should be made within 60 days from the date of last announcement of the plans. It should be underlined that, in the context of article 10, if revision of the plan was asked for in the application, the response given should again be subjected to an action. On the other hand, the development plans may also be subjected to cancellation together with implementation transactions such as licence, zoning status and nationalisation.

The rules are clearly set out in the article 11 of Act no 2577 of Administrative Law. Accordingly, if the administrative authority does not respond to the application made against the administrative transaction within 60 says, it means that the application was rejected. Also, the term for litigation restarts upon rejection which stopped at the time of the application. But if the application is made after the term for litigation has expired, the provided answer does not restart the term for litigation. In order for the term for litigation not to be restarted, the claim should be rejected by the administrative authority. However, if a new administrative transaction is made by the administrative authority then an administrative action can be brought against this transaction within the time limit because it is different from the previous transaction and brings new legal consequences.

It should not be concluded that every administrative transaction can be subjected to a nullity action by everybody. The applicant must have a certain legal benefit, as a result of the administrative transaction, the degree between the infringement and the interest of the applicant will be at discretion of the court. In order for an administrative action to be taken, the necessary condition should be fulfilled which is that the person concerned should have a personal, lawful and actual interest. Put in another way, in order to refer the matter of the dispute between the infringement and the plaintiff’s interests, there should be an impact on the plaintiff’s interests. This means that it should have an impact on the plaintiff’s personal interest and there should be a serious and reasonable link between the infringement and the plaintiff. Otherwise, if there is no legal interest, the action will be dismissed. Nevertheless, the jurisprudence of the Court of Council emphasizes and accepts that other land holders, non-govermental organizatons (NGO), city planners and the chamber of architects also have a legal interest in order to take an action.

In some circumstances, the development plans are drawn or procured to be done by someone else by the Special Environment Board of the Prime Minister, the organized industrial sites, the High Board of Privatization, the Province Bank, the Ministry of Public Works and Settlement and The Minister of Culture and Tourism .

It should be mentioned that, there is a hierarchy among the plans. In this hierarchy, a 1/1000 scale implementary development plan takes place at the bottom whereas a 1/10000 scale province or country plans take a place at the top. In just the same way of the hierarchy of norms, lower scaled plans cannot not be contrary to upper scaled plans. In the case that there is an absence of a regulatory development plan an implementary development plan cannot be made or changed.

During the judicial review of development plans, along with the city’s planning principles, rules of planning and public interests should be necessarily considered in respect of completeness of the development plan, its general structure, quality in scope of the area and the protection of the environment should also be considered.

In pending cases on the matter of the nullity of development plans, after presenting the development plans and the debate reports of the county council from the related municipal, the case is examined by experts. Consequently, according to the expert report, stay orders are issued or the case is settled.

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