If the question arises as to whether an older building measure has been constructed illegally, the building measure must be assessed according to the building regulations that applied when the measure was constructed. In this article, we take as our starting point piers that were built when the Building Act of 1965 was in force.

The Building Act of 1965 was the first nationwide building act. It came into force on 1 January 1966 and replaced the 1924 Building Act. It was later replaced by the Planning and Building Act of 1985, which in turn was replaced by the current Planning and Building Act of 2008.

If a building project that requires an application has been built without a permit, the municipality can demand rectification. This also applies to older building projects that did not require an application, but were subject to notification under the 1965 Act. If the measure was not subject to notification or application and complied with the law at the time of construction, the measure is not illegal under the current rules. Today's Planning and Building Act does not apply retroactively to measures that were legal under previous legislation.

Problems arise if the measure that was built at the time was built in violation of the current regulations and also does not fulfil today's building regulations. If an older building project was notifiable under the 1965 Act, the municipality can demand rectification, despite the fact that many years have passed since its construction. This is because there is no statute of limitations for offences under planning and building legislation.

Corrections can be made by applying for subsequent approval, where the municipality grants permission for what has already been built. Current building regulations are used when assessing subsequent applications. If rectification cannot take place in the form of subsequent approval of the measure, the municipality may order the demolition of the illegal measure.

Important clarification from the Supreme Court

The Supreme Court recently heard a case concerning a jetty from the 1970s to determine whether it was notifiable and whether the municipality could demand its removal. When the pier was built, the Building Act of 1965 applied, section 84 of which required a building permit to be submitted to the municipality prior to the erection of certain structures, including "quays, breakwaters, docks, bridges" and "other permanent structures and installations".

The question was whether the pier in question, which was 76 square metres in size and founded on concrete columns, fell within the scope of "other permanent structures and installations" in section 84 of the 1965 Act.

The Supreme Court was of the opinion that the expression "other permanent structures and installations" had to be read in conjunction with the examples mentioned in the provision, and that a restrictive interpretation of the wording therefore had to be applied. The Supreme Court pointed out that the aforementioned examples concerned large structures and facilities that are typically used in commercial or public activities, and/or which are accessible to a larger circle of people. Furthermore, the Supreme Court pointed out that it is natural to understand the term "quay facility" as a larger quay/pier with facilities for loading and unloading and that smaller piers are not included.

The Supreme Court's summary of the legal position is that "piers of a certain size and character" may be covered by Section 84 of the Building Act of 1965. The Supreme Court further noted that it is particularly important how the jetty is placed in the landscape, the land use in the area, the extent of terrain encroachment and the area of use for whether the law's requirement for notification should apply.

The Supreme Court concluded that the jetty in question was not subject to the notification requirement as it was not to be regarded as "other permanent structures and facilities" pursuant to Section 84 of the Building Act of 1965. The municipality's decision on demolition was therefore invalid.

What are the consequences of this ruling?

The ruling emphasises that the public sector must have clear legal authority to interfere with citizens' property rights. It clarifies that a specific assessment must be made of whether a pier that was constructed under the Building Act of 1965 was subject to notification under section 84 of the Act. If the pier was only for private use and "did not deviate from the normal size and character of such piers", it was not subject to notification at the time of construction.

Although it did not affect the outcome in the Supreme Court, it is worth noting that the building authorities must prove illegality, and reasonable doubt must be taken into account. The district court in the first instance concluded that the pier in question was subject to notification, but found that the building authority had not substantiated that a building notification had not been sent before the time of construction. The municipality's decision was therefore invalid. The Supreme Court did not rule on the burden of proof, but if they had found the pier to be notifiable, the decision could still have been invalid due to lack of evidence.

The authors of this article regularly assist in cases of illegality follow-up. Feel free to contact us if you need assistance in a case where the municipality has sent a notice or made a decision on illegality follow-up.

Clarification from the Supreme Court on the notification requirement for private piers from the 1970s

Important clarification from the Supreme Court

What are the consequences of this ruling?