Relief and Non-Conforming Use: What May Be Asked For
Where what is proposed departs from the applicable plan, there are two routes: relief and permission for non-conforming use. Both require publication and a right of objection for neighbours, and both have a clear limit beyond which the application is simply not available. This guide sets out the distinction, the process and the limit.
What relief is
Modern life is stretched between order and freedom: on one side the wish to build, expand and pursue ambitions without limit, and on the other a reality that constantly constrains us, including in the resources at our disposal, as individuals and as a society. One of the principal ways in which the individual and the public reconcile these opposing forces is planning, and nowhere is it more consequential than in building: the planning and building system supervises every construction and every division of land, and whoever wants to build, extend or change a use meets it on the way. The relief (heker, or zoning variance) is one of the openings that this very system offers.
Relief is permission to carry out work that does not fully conform to the provisions of the applicable plan, without amending the plan itself. It is granted by the local committee within the permit application process.
Common reliefs:
- A departure from the building lines, for example building closer to the plot boundary than the plan allows.
- Additional dwelling units beyond the number set.
- An additional storey or a change in height.
- Moving floor area between storeys or between uses.
Relief is not a right. It is a matter for the committee discretion, and it can be refused even where it is within power to grant.
The case law has put the purpose this way (in free translation from the Hebrew):
“...The ‘relief’ procedures were created, as their name testifies, to ease the path of home builders and not to drive them into the long and cumbersome procedures of plan amendment; and if that is true of one who has not yet begun to build, then for one who has been building lawfully under permits for many years and wishes to advance and complete the work, all the more so.”
From the case law on the purpose of relief procedures
What non-conforming use is
Permission for non-conforming use allows a property to be used for something the plan or the permit does not allow. The common example is running a business in premises designated for residence, or office use in premises designated for retail.
Two points distinguish it from relief:
- It concerns use rather than building. Relief goes to how the property is physically built. Non-conforming use goes to what is done in it.
- It is granted for a limited period, not in perpetuity. At the end of the period an extension has to be sought, and it is not assured.
A non-conforming use permit is granted at the local committee’s discretion and for a limited period only. Common examples: use as a kindergarten in an area zoned for residence, or a dental clinic in a residential building.
Two kinds of non-conforming use, and a distinction worth knowing. A use non-conforming with the permit is a use different from the one for which the permit was granted but allowed under the plan in force; such a permit is granted at the committee’s discretion, and nothing prevents it from being granted even permanently. A use non-conforming with the plan is a use different from those fixed in the town plan itself, and a permit for it is granted for a limited period of a few years only. The distinction is not technical: a permit is a bureaucratic matter that can be regularised, while a town plan has a purpose and planning logic that is not meant to be bypassed, so a departure from it will not be approved indefinitely.
An example from the case law. In AP (TA) 21835-07-10 Shafran v. Tel Aviv Local Planning and Building Committee, a neighbourhood grocery sought a non-conforming use permit in premises whose permit had been granted for a bank. Having held that this was a use non-conforming with the permit, the court ruled (in free translation) that “such an application must be examined under the compatibility test. In applying this test, the committee examined whether there is parking near the grocery allowing goods to be unloaded without creating a traffic hazard”. An appointed expert found that most customers arrive on foot, by bicycle or by public transport, and that an unloading bay could be arranged without disturbing the neighbours, and the application was examined accordingly.
A tenant planning to open a business in premises not designated for commerce should settle the non-conforming use question before signing the lease, not after. The process takes time, allows objections, and is not assured.
The limit: substantial departure
This is the part to understand before money goes into design. Not every departure can be approved as relief. The Law and the regulations define what counts as a substantial departure from a plan, and anything falling within that definition cannot be approved as relief at all, whatever the committee thinks and whatever the neighbours say.
The clearest example: a change of land designation is not relief. Moving from residential to commercial, or from open public space to building, is not a departure that can be approved through the relief process. The only route is a new plan, which is an entirely different process, longer and more complex.
The language of the statute, section 151(b) of the Planning and Building Law: “no relief or non-conforming use permit shall be granted if it involves a significant deviation from a plan applying to the land or the building”. The detail is supplied by the Planning and Building Regulations (Significant Deviation from a Plan) 5762-2002, which set out in an orderly way what is in principle a significant deviation and what is not, and the logic behind them is to block changes that substantially alter the character of the building while leaving within the scope of relief whatever does not.
Hence the first check in every case: is what is sought within the scope of relief, or does it require a plan? If the answer is a plan, every conversation about relief wastes months.
The process and publication
- Filing the permit application including the relief or non-conforming use sought.
- Preliminary review by the committee, in the course of which it is also considered whether this is a substantial departure.
- Publication: in the press, a sign at the site, and personal notice to the owners of adjoining properties and to anyone who may be harmed.
- An objection period, in which anyone harmed may object.
- A hearing and decision by the committee, weighing the objections.
Publication is not a formality. An application not properly published can be set aside, even after the permit has been granted, so this is a point worth confirming was carried out in full.
In detail: the publication is made at the applicant’s expense and includes a newspaper notice, a sign displayed on the front of the building or land for which the relief is sought, and personal notices to everyone liable to be harmed by the approval as well as to the owners and occupants of the building or land concerned and of the adjoining properties. The local committee hears the application and any objections and decides whether to approve, and its decision, on the application itself or on an objection, may be appealed to the appeals committee.
Who prepares the application, and in what stages. Anyone may apply for a non-conforming use permit, but the application itself may be prepared only by a qualified professional: an architect, a building engineer, an architectural technician or a building technician. The process begins with a request for a permit information file, continues with filing the application, setting out the requested use and the grounds under the regulations, and is followed by the publication, objections, hearing and decision described above.
Neighbour objections
Neighbours and owners of adjoining properties have a right to object. This is the part that lengthens the process in practice, and it is also the part that can be handled well.
From the applicant side: it is worth approaching the neighbours before publication, showing them the design, and finding out what troubles them. An objection born of missing information is usually resolved in a conversation. An objection born of real harm calls for a change in the design, and it is better to discover that before the application is filed.
From the objector side: a good objection identifies concrete harm, for example blocking light or air, loss of privacy, or parking pressure, rather than objection to building in principle. A professional opinion strengthens it.
Cost and timing
Two things worth pricing in advance:
- Time. An application including relief is examined on a longer track than one conforming to the plan. Add the time for publication, the objection period, and the hearing of objections.
- Betterment levy. Approval of relief that increases the value of the property creates a liability to the betterment levy at half of the betterment. A parallel liability arises on non-conforming use. That is a cost to build into the calculation before deciding, rather than discovering it when payment falls due.
A committee decision on relief or non-conforming use may be taken to the district appeals committee within 30 days. That right belongs both to an applicant who was refused and to a neighbour harmed by the approval.
Every case is examined on its own facts. For a consultation with a lawyer from the real estate department call 02-5953322, send a WhatsApp message to 050-4411343 or leave your details in the form below, and we will get back to you as soon as possible.
What people ask most often
Must the local committee approve relief?
What is the difference between relief and non-conforming use?
Can land designation be changed through relief?
Is publication to the neighbours a formality?
Does approved relief create a betterment levy?
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Before you file for relief or a non-conforming use
Tell us what is actually being asked: which provision of the plan you want to deviate from, where publication to the neighbours stands, and whether a decision or an objection has already come in. The line between relief and a substantial deviation is better drawn before filing than after.