Planning and construction lawyer
Permit for an unusual use of the land
The local planning and building committee is the body that oversees the plans for a particular city (TBA – city building plan). Generally speaking, the local planning and construction committee is responsible for creating the requested planning for the city (except in exceptional cases under national / spatial planning controls) as well as determining where residential buildings, industrial areas, public buildings, and institutions will be built.
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
There can be no building on a piece of land without the approval of the city’s planning and construction committee. The owner of the land must follow the early planning drawn up by this committee. This means that if the Planning and Construction Committee has designated this plot for a residence, only a residence can be built on it. It will not be possible for him to build, for example, a mall, an office building, or an ecological park on the land, and even if he desires to put the land to other uses, he has to obtain a permit from the local committee.
How do you determine what the property will be used for?
We have already mentioned above that the designated use (“land designation”) of a property is the use that has been deemed appropriate by the planning and construction committee of that city for a specific plot of land. Only the designated use of the property is permitted, and any other use will require a permit.
When assessing the intended use of a particular property, the building permit and the local economic development agency are the places where you can find the most accurate information. Occasionally, another use may appear in places or in other official documents (such as taboo documents that describe the type of property or descriptions in property tax records discovered by the municipality). An in-force construction permit (or construction permit) is the most reliable and up-to-date source of information in the matter of land zoning (as opposed to, for example, checking the ownership of the property).
In regards to the building permit, it is important to note that it consists of two parts, each of which must be examined in conjunction with the other. This permit will have two parts. One will be in words, and the other will be a graphic representation. We should examine both simultaneously in order to determine the intended and permitted uses of the land / property under our control.
How do you define abnormal use of a property?
An abnormal use is one in which a person uses the property for purposes that are not specified by the law. Generally, the term “property” can refer to either an abnormal use of the building itself or an abnormal use of the land, the land itself, as well. It is an extraordinary use of a piece of land if the owner decides to construct a residential building there instead of an urban shopping mall, because it is intended to serve a general purpose for residents. This is in violation of the City Building Plan (TBA).
The use of property in an abnormal manner can be determined in several circumstances. In the example we provided, for example, if there was a TBA allowing the construction of a residential building on a plot of land, and the TBA has changed, and now only a mall may be built there – indeed, it was legal to build a house there previously, but is now illegal. In this case, the local planning and construction committee may recommend that for a specified period the property owner may continue to use his land for the purpose it was previously used for.
Additionally, it is possible that there is a certain TBA, but the landowner wishes to use the land for a different purpose. If this situation occurs, he may be able to request a use permit for a building that cannot appear to be built on that property.
I would like to emphasize that this may not always be prohibited according to the planning and construction laws – the local planning and construction committee has the authority to approve extraordinary uses across the city.
What is the process for obtaining a permit for extraordinary use?
We noted that an unusual use can be a practice that deviates from the permit that has been granted to the building (when according to the IBA there is no prohibition against using the land for this purpose) or a practice that deviates from the city building plan.
It is possible to submit a permit application for an extraordinary use, but it must be taken into account that a particularly significant deviation from the designated use will not be approved. As stated in the planning and construction regulations (significant deviation from the plan), 2002 , which state that it is impossible to approve a change that alters the character of the immediate environment through an extraordinary use , such as the use of industry in a residential area, or hotels in an industrial or commercial area on agricultural land .
It is important to distinguish between two types of requests for exceptional use:
– Use that deviates from the permit – use that differs from the one for which the permit was granted, but it is allowed according to the plan in place.
It is possible, however, for it to become permanent.
Deviations from the City Building Plan – Any use that differs from that stipulated in the plan, such as the use of an employment structure in a residential area.
Permission for extraordinary use will be granted at the discretion of the committee, and for a limited period of time.
As mentioned above, as long as the application is approved, a permit for use exceeding the permit can be granted without a time limit, whereas a permit for use exceeding the BIA may only be granted for a limited period of time. BIAs differ from permits in that the permit is a bureaucratic matter that can be regulated, whereas permits have a purpose, have a purpose, and do not intend to be cancelled. Based on the assumption that the IBA is suitable for the city and that its instructions and regulations must be followed, a permit for a use that deviates from it will not be issued for an indefinite period of time.
Who is eligible to apply for an extraordinary use permit?
There is no restriction on who may apply for a permit for extraordinary use; however, only one of the following professionals may submit the request:
An architect, structural engineer, architectural engineer, or building engineer.
Architects, engineers, appraisers and surveyors are members of Mor & Co.’s real estate, planning and construction department. They work together to provide their clients with the desired outcome.
Permit issuance stages:
1. Request for information
The first step in the process includes submitting a request for information (permit information file).
A request must state the nature, i.e. the purpose for the request, and the reasons for the request for extraordinary use or relief. It is possible that the committee engineer will ease some of the requirements based on the construction permit previously granted to the applicant.
3. Publication of the application
After submitting the application to the local committee, and before the hearing of the application, the applicant must publish the essence of the requested use, according to the committee’s instructions.
At the applicant’s expense, advertising should be conducted by an advertising agency familiar with the requirements of the local authority.
The advertising company will publish in the following ways: daily newspapers, on the Internet, in front of the building or on the ground, in addition, notices must be sent by registered mail – to anyone who may be harmed by the approval of the abnormal use, the notice must detail the nature of the abnormal use, and the deadline for submitting objections, in accordance with section 149 of the Planning Law and the construction.
Discussion of the extraordinary use permit request
It is only after the application has been published that the local committee will be able to discuss the application for an extraordinary use. In the event that objections to the request are presented, the local committee will hold a discussion on the objections and determine whether the unusual use should be approved.
Here we would like to point out and emphasize that if the use in question deviates from a national outline plan or district outline plan, the request must also be approved by the National Planning and Construction Council.
Discussion of the application for an extraordinary use permit: The hearing on the permit application for an extraordinary use takes place in the local committee, and the hearing is conducted in accordance with the regulations of administrative law. After the hearing, the committee’s decision is published and sent to the applicant or opponents of the permit application. .
An appeal may be filed to the appeals committee following the local committee’s decision to reject or object to a request for extraordinary use.
There is an appeal committee in every district in the country whose members are appointed by the Minister of the Interior.
According to the Law on Planning and Construction, it outlines the cases and the procedure for appealing the decision of the local committee to the appeals committee.
An example of a ruling on a permit for extraordinary use
The case is ATM (TA) 21835-07-10 Haim-Zvi Shafarn v. Tel Aviv City Committee
This ruling discusses a grocery store’s request to get an extraordinary use permit. Actually, its area is intended for a bank, but the owners are interested in building a supermarket instead. The court distinguishes between a permit application that deviates from the permit, and a permit application that deviates from the plan. Thus, the plan did not specify that a bank should be built on the property rather than a grocery store, but the permit received by the property owners stated that the permit was valid only for a bank.
As the court determined that the discussion revolved around a use that deviates from the permit, the committee determined that it needed to apply the compatibility test. In order to apply this test, the committee examined whether there is a parking lot near the supermarket that allows unloading of goods without causing traffic problems.
According to the ruling, the compatibility test must be applied when considering a use that exceeds the permit, and this was the case for the grocery store. According to an external expert who examined the matter, the majority of customers access the grocery store by bicycle, public transportation or on foot, so the parking does not pose a traffic hazard. Moreover, the expert stated that it is possible to create a bay for unloading and loading that will not disturb the neighbors.
Generally Summary - The appeal committee was entitled to examine the planning situation in relation to the plans applicable to the building after the Supreme Court had referred the permit issue back to it for reconsideration. According to the appeals committee, the use of the building as a grocery store is consistent with the plans, but not with its construction permit. Therefore, as determined by the appeals committee, this request is for an extraordinary use, which deviates from the permit but not from the plan. It was not denied, in this case, the respondents' claim that the market should be analyzed in light of the "suitability test." In addition, I do not accept the petitioners' claim that the unloading and loading of the trucks caused excessive noise. The claims regarding noise levels that exceeded the permissible limit were not substantiated by an opinion as required, and are in conflict with the conclusions of the appeals committee. In any event, if the petitioners or any of them are indeed suffering a noise nuisance, or if the petitioners suspect such a nuisance will occur in the future, they may decide to take measures in accordance with the law as they see fit It is the same with respect to other nuisances, such as those caused by the supermarket's operation, or by its possible deviation from the license's terms... Based on all the evidence presented to her, she determined that: This supermarket meets the requirements. There is no reason to interfere with her conclusion, since according to the parking regulations, it is not required that the supermarket's operation have a parking lot and that the proposed parking solution is not unreasonable to the extent that the court will intervene, let alone that it be implemented in practice and approved by the relevant party within Tel Aviv Municipality.
Support From a Lawyer is Essential
There are many detailed and meticulous requirements when it comes to requesting permits for real estate issues, which is why it is important to seek the assistance of a lawyer.
We specialize in real estate, planning, and construction, if you are interested in applying for a permit for the extraordinary use of the property, we will be glad to assist you in obtaining it.
