Demolizione edifici abusive relationship

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/03 – L'Ordine di demolizione è una sanzione penale L'ambito strettamente correttiva di un ordine di demolire un edificio illegale era stata del .. with the law or whether it is founded on an abuse or misuse of powers; In relation to the prosecution of town and country planning offences, the. Tradimalt Spa | Tradimalt Spa è leader nel sud Italia nella produzione di premiscelati per l'edilizia di qualità. unplanned uses and relations hosted by them. The tale . edifici della città abusiva, “(l)e strutture in calcestruzzo incompiute, le solette dell'ultimo in attesa di una demolizione probabile, che dunque non sono rovine, ma costruzioni in corso.

Through a gently sloping ramp, it is possible to reach an overlooking terrace, which offers a vantage point on the city and the port of Bandirma. The green park becomes the natura extension of the urbanity for the city. Full of different common zones, it is organized and recorded by crossing pedestrian pathways, that encircle and connect the new features and spaces to the existing. Coming from the west side, and after the first public square, the 5 stars hotel is situated, with a space for gathering including conference and activity venues of various sizes.

In front of the hotel a huge private terrace takes place, allowing guests and vistors to enjoy dramatic views of the Marmara Sea. On the other side, the protected trees form an enchanting woods, with a deep connection to the uncontaminated nature of the site. Going on, the pre-exsisting building volumes crop up one behind the other, completely refunctionalized; the recreational zone houses soccer fields, basketball fields,a small lake where for kayaking, fishing and other acquatic recreations.

The lake also serves as a rainwater collection system, wich in return supplies irrigation for the proposals green zones. The recreational zone also houses expansive jogging paths for running with a large indoor gym for fitness.

The entire green area includes site-specific works, temporary or not, to offer a spatial and cultural experience to the visitors. The main pedestrian exis is the the green roof of the Design Institute, completely accessible, that connects the two sides of the canyon.

In the East side takes place the 4 stars hotel. This structure is designed to enjoy from any room the expansive views of the sea. For this reason the hotel is projected as a large steped architecture wih green terraces. All the rooms have a beatiful and large balconies that allow the users to enjoy the panorma and at the same time to shield the rooms from the cold winds.

For this reason, it makes use of a further natural element: In addition to pedestrian walkways and crossings, the water flows through all over the park, through small streams, confluent in sports small lake, fountains or pools of rainwater harvesting. Military pre-existing buildings, now reduced to only perimeter walls, are an integral part of the regeneration process: Very simple box-like volumes are placed inside, to fill the gap of the old functions, and hosting, now, labs or open workshops, and temporary housing for students and visiting artists, to support knowledge, integration and sharing.

The general image of B. Is very earthy, with naturalistic elements such as sunlight, plants, flower, waterfall, and small lake. The inclusive design of the playground areas and the meaningfull design of green gardens, the park becomes a landscape for gathering, sharing, and family time for the community.

As a symbol of knowledge achievements, the design of B. The site is turned into a socially and environmentally sustainable green park, which provides areas for recreation, environmental education and social relations with the growing community.

The project would face over time and to changing sourrounding conditions, adapting itself during the winter and summer time, becoming itself an example of sustainable design and construction practice.

It incorporates the passive design strategies of natural ventilation, daylighting and solar heat gain, and all the positivities of the hypogeal architecture design. The underground buildings, thanks to the thermal inertia of the soil, do not dissipate heat, ensuring indoor comfort in both winter and summer.

Moreover, it is guaranteed the total permeability of the soil, since there are no buildings above the ground, and it is completely covered by green grass and trees. The materials used want to bring up with their color to the earth, and then point out the deep and indissoluble relationship with the natural essence of the place. It will facilitate a creative environment in which fundamental knowledge of design processes is generated, shared and experienced.

The proposal houses the Design Institute which aims to create a place where the design faculties from the vicinity can gather, organize meetings, collaborative workshops, symposium, debates.

Again, a place for experimentation, innovation and creativity.

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The Design Institute is the only architecturally expressed, placed above the carved system and the green surface of the park. It is designed as a real pedestrian pathway, that emerges from the earth, standing above the canyon. It has a clearly expressed public behaviour, with a continuous and connected spatial structure, joined by a foodbridge which allows full accessibility. The Court considers it necessary in the first place to single out the following facts for particular consideration.

As regards the offence of maintaining a building erected without planning permission, the Court of Appeal, bearing in mind that the reasonable time under Article 6 of the Convention had been exceeded, made a mere finding of guilt against the applicant under Article 21 ter of the Code of Criminal Procedure. According to that provision, the court may, if the reasonable time has been exceeded, make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law.

In addition, the Court of Appeal ordered the applicant to restore the site to its former condition and accordingly to demolish the impugned building. The court is not empowered to take the initiative in this regard it cannot therefore order the measure of its own motion ; it can review the lawfulness of the measure but not the appropriateness.

Furthermore, the measure may only be ordered as a result of a contravention of planning law and is therefore dependent on the outcome of the criminal proceedings.

In the instant case, although the Court of Appeal had held that the reasonable time within the meaning of Article 6 of the Convention had been exceeded, it drew no conclusion from that as regards the remedial measure for which the competent planning inspector had applied to the public prosecutor in Juneand ordered the demolition of the house in issue.

The Court notes that, even assuming that the measure falls under the civil head of Article 6, it is nonetheless subject to the reasonable-time requirement. It notes further that the classification of the remedial measure in domestic law is the subject of conflicting legal theory and case-law see, in particular, the judgments of the Court of Cassation of 8 September and 16 Januaryaccording to which it is not a penalty but a civil measure, and the ruling of the Administrative Jurisdiction and Procedure Court of 26 Novemberaccording to which, although civil, the measure cannot be dissociated from the criminal proceedings — paragraph 43 above.

In its decision on admissibility of 11 Maythe Court concluded, having regard to the fact that the reasonable time had been exceeded, that the fact that the Court of Appeal had merely pronounced a finding of guilt against the applicant did not deprive the applicant of her status as victim because she had simultaneously been ordered to restore the site to its original condition. These are the classification of the offence under national law, the nature of the offence, and the degree of severity of the penalty that the person concerned risked incurring see, among other authorities, A.

Although the length of the proceedings on the merits a little over three and a half years for three levels of jurisdiction between May and January does not in itself appear to be unreasonable, the police report recording the unlawful nature of the building dates from February It is on the basis of that finding that the continuing offence consisting of maintaining a building erected without planning permission was established and the applicant was subject to criminal proceedings and thus charged within the meaning of the case-law.

Therefore, the reasonable time commenced as of the date of that report see Hozee v. Considered as a whole, the proceedings therefore lasted between eight and nine years for three levels of jurisdiction, including more than five years at the investigation stage, which, however, was not particularly complex. Furthermore, the Court sees no evidence to show that at any stage of the proceedings the applicant hindered the smooth running of the investigation. In these circumstances, the Court cannot deem a period of more than five years merely for the investigation phase to be reasonable.

The applicant complained of a violation of her property rights guaranteed by Article 1 of Protocol No. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

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The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. According to the Government, the local authorities do not inspect all inheritance deeds or monitor all tax returns or requests to be connected to the water-supply system for the purposes of checking whether the buildings in question had planning permission.

Moreover, to make buildings erected without planning permission immune from taxation would be tantamount to encouraging this kind of offence. The water-supply companies were not empowered to check the lawfulness of the buildings that they connected to their network. Furthermore, the registration information provided by the applicant dated back tothe time when the first record of offence was drawn up.

In addition, the States Parties were able to control the use of property for reasons of town and country planning affecting the general interest, and equip themselves with effective tools to ensure the pertinence of any measures thus adopted. Such tools included demolition and the restoration to their original condition of sites on which buildings had been erected in breach of legislation requiring planning permission.

Admittedly, the applicant had received no compensation in this particular case but it was in full knowledge of the facts that her father had built the house in an area in which no building was permitted.

Furthermore, the Belgian State could not be accused of negligence. The Government indicated that the aim of the interference arising out of a demolition order made on the basis of town and country planning legislation was to protect the environment. That was a legitimate aim, in accordance with the general interest for the purposes of the second paragraph of Article 1 of Protocol No. The applicant could not claim any legitimate expectation on the basis of the age of the building.

She had inherited a property which was in contravention of the law and had immediately carried out acts which themselves required planning permission, without making any attempt to apply for that permission or to ascertain whether or not the building could be made compliant. She could not therefore claim any tolerance on the part of third parties that had prejudiced her own rights.

The measure complained of was therefore in no way disproportionate. According to the applicant, the Belgian authorities had to be deemed to have been aware of the existence of the building, notably because between and she had paid second-residence tax on it in addition to property tax and because various documents referring to the building had been registered. The Government, which had taken no action in relation to this house for over thirty years, could not rely on their poor organisation.

The general interest required coherent, clear and rapid action on the part of the authorities. The circumstances of the case demonstrated that they had waived their right to take action in the instant case.

Accordingly, it must be held that they could not suddenly go back on their decision without breaching the principle of the legitimate expectations of citizens. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. In the instant case, the impugned building had been in existence for twenty-seven years before the domestic authorities recorded the offence.

Recording breaches of the town and country planning legislation and allocating the necessary resources to do so is undeniably the responsibility of the authorities. The authorities could even be considered to have been aware of the existence of the building in issue since the applicant had paid taxes on the building, just as her father had done before her.

In this regard, the Belgian State cannot properly rely on its internal organisation and a distinction between the town and country planning authorities and the tax authorities. It must therefore be considered that the authorities tolerated the situation for twenty-seven years and continued to tolerate it for ten years after the offence had been establishedthe year in which the house was demolished.

That interference was in accordance with the law the decree of 18 May It was also intended to control the use of property in accordance with the general interest since it involved bringing the property into conformity with a land-use plan establishing a forested zone in which no building was permitted. The debate therefore centres on the proportionality of this interference. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: The Court notes that this case concerns rules applicable to town and country planning and environmental protection, areas in which the States enjoy a wide margin of appreciation.

It reiterates that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such see Kyrtatos v. The environment is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities.

Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard.

The public authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective. Thus, restrictions on property rights may be allowed on condition, naturally, that a fair balance is maintained between the individual and collective interests concerned see, mutatis mutandis, Fotopoulou v.

The Court therefore has no doubt as to the legitimacy of the aim pursued by the impugned measure: In this regard, various factors must be taken into consideration.

Firstly, the Court notes that a great deal of time had elapsed since the offence occurred. The applicant, and her father before her, had had peaceful and uninterrupted enjoyment of the holiday home for a total of thirty-seven years. The deed of partition drawn up on 6 January between the applicant and her father had been registered with the Mortgage Registrar at the Ministry of Finance and a registration fee had been paid see paragraph 8 above.

Since then, the applicant had been paying an annual property tax and second-residence tax on the house see paragraph 9 above. The water-supply company carried out works to connect the house to the water and drainage system with no reaction from the authorities see paragraph 11 above.

Furthermore, when the offence was established, after twenty-seven years, the authorities then allowed a further five years to elapse before instituting criminal proceedings, thus treating the matter with no particular urgency.

However, notwithstanding the provisions of the relevant legislation, they failed to take the appropriate action to ensure compliance.

They thus contributed to the continuation of a situation which could only be detrimental to the protection of the forested area which that legislation sought to protect. The Court observes, secondly, that Articles and of the decree of 18 Maytaken together, make general provision for an application to be made to render compliant a building without planning permission. However, the provisions of Article clearly indicate that a building erected in contravention of a land-use plan see paragraph 38 above cannot be rendered compliant.

In addition, the fact that the applicant had not been the owner of the property when the house was built and that the authorities had failed to react for a protracted period of time could not give the applicant the impression that proceedings could not be brought against her, since under Belgian law the offence was not subject to limitation and the public prosecutor could decide to apply the law at any time.

All the above leads the Court to conclude that the applicant has not suffered disproportionate interference with her property rights. Accordingly, there has been no violation of Article 1 of Protocol No.