Legal Advice on Construction Disputes

Questioner

Good morning, When we bought this house there was already an old wooden shed. This had rotted to such an extent that there was a risk of collapse. We started renovating/repairing the shed. Wooden walls have been largely replaced wall by wall, also by wooden walls. A few wooden beams, a piece of the old foundation and the partial old floor have been kept intact. We have been working on this for more than 3 years. The shed has remained the same. After us we have new neighbours, who are ruining our living pleasure. Now they have asked the municipality for enforcement. The municipality has rejected this request and has written to us that everything is in order. The neighbours do not accept this and were proven right at the hearing and now we have to demolish the shed, with a penalty. So first the municipality informed us that everything is in order and now we have to demolish the shed that has been there for years and is only being renovated/repaired. We have renewed too much!?! What can we do about this and what can we appeal to? Is there case law or something about this? Please respond.

Lawyer

The shed will require a permit and I suspect that for that reason the municipality has taken up the enforcement request. I understand that you first renovated the shed before asking for permission, this will be problematic because you have consciously taken a risk that you will incur costs to renovate an illegal structure. Enforcement can be stopped on a number of aspects: prospect of legalization, permission given by a municipal official with decision-making authority, if enforcement leads to imbalances because it is, for example, a minor case. For this you should look at the zoning plan and the aesthetics note of your municipality.

Questioner

The barn was already there before we bought this house with outbuildings in 1997. But because the barn was rotten, we have been busy renovating it for years, wall by wall, a little bit at a time. Furthermore, the barn has remained the same size etc. Why are you not allowed to renovate something that has been around for a long time? The municipality did not find anything during enforcement and said that it was in order. And now demolish it? We do not understand why you are not allowed to repair/renovate/maintain an old barn. Where does it say that in the law?

Lawyer

If the shed was once built illegally, it may be that the structure may now be legalized, the zoning plan states what is/is not prohibited. Usually sheds and extensions etc. may be built on the backyard without a permit. What reason does the municipality give in the hearing to honor the request for enforcement?

Lawyer

From the description given I gather that there can be no question of permit-free maintenance. There could be a question of permit-free construction. Without further details of the plot, existing construction and dimensions of the intended shed, no statement can be made about this. The municipality apparently believes that there is no permit-free construction and that the construction is not permitted based on the building regulations in the zoning plan. You could check whether construction is permitted based on transitional law and/or a deviation possibility included in the zoning plan (in-plan deviation) If the construction is not permitted on the basis of rules in the zoning plan, a minor deviation could perhaps provide a solution. In addition, your municipality could have included further provisions in policy rules. It is also not possible to make a statement about this without further details.

Lawyer

It is possible that the barn was still there under transitional law, but not in the zoning plan. In that case, the actual construction of a new barn may no longer fall under that transitional law. That might have been the case if the barn had only been repaired here and there. It is impossible for me, as a specialist in environmental law/enforcement, to give you the right answer to your question without knowing the details. You can contact me directly; I want to read the letter from the municipality for you so that you may have some more direction (max. half an hour). Essential: pay attention to the appeal period (I assume you have received a decision on the objection), because if you appeal too late, the decision becomes irrevocable and you can no longer change the situation. That period is 6 weeks after the decision date. So react quickly!

Lawyer

Presumably the discussion here is whether the shed falls under the transitional law. In your situation, there is actually a question of renovation. A limited number of parts of the shed have been left intact, the rest has been renewed. In this way, there is no longer any question of 'normal maintenance'. As a result, the transitional law protection has expired and the shed is now illegal. Of course, all this only applies if the shed is in conflict with the zoning plan. However, the municipality will then also have to explain why it is not possible to legalize the shed by granting a permit to deviate from the zoning plan.

Lawyer

I agree with my colleagues. Without the correct data, nothing can be stated with certainty. There are a number of possibilities, which have already been mentioned above. Zozls transitional law zoning plan, building without a permit, replacing existing building without there being any new construction. But above all, you must immediately object to the municipality's decision, otherwise you will no longer have any rights and the decision will be irrevocable.