Opinions This is a debate post. The post expresses the writer’s views.
In the Planning and Building Act, the clear main rule is that the municipality has a duty to pursue illegal conditions.
The Planning and Building Act is one of the few legal areas where offenses do not become statute-barred. You may be ordered to demolish the wharf your family has had for 50 years because the municipality cannot find evidence in its archive that it is legal.
When the question is whether such old relationships should be pursued or not, it is not necessarily a matter of granting “amnesty”, but perhaps just as easily a question of whether the relationship is in reality illegal.
Couldn’t the municipality have thrown away the message your grandfather delivered to the town hall because it wasn’t considered archive-worthy? Couldn’t your grandfather have called the municipality and been told that the pier could be raised without notice? For conditions that go back a long way, crucial information may have been lost.
That there could previously be insufficient documentation in the building case archive is quite well known. The Archives Act was first introduced in 1999. The preamble to the act states that previous regulations for archive work in municipal administration were often not followed up, with the consequence that irreplaceable material was thus lost.
The fact that the municipality cannot find evidence in its archive that the measure is legal does not mean that it is illegal. It may be that the measure was carried out before there was an obligation to apply or that proof of legality has been lost.
In the question of whether old relationships should be pursued, the problem of evidence in itself therefore becomes a weighty consideration. It is the administration that has the burden of proof for illegalities. In old cases, it can be difficult to fulfill.
When the perspective of time dictates that old cases should not be prosecuted, it is thus also about an acknowledgment that the evidence situation does not enable a proper prosecution in terms of legal certainty.
Can the municipality fail to pursue illegalities?
The law also gives the municipality an opportunity to refrain from pursuing illegalities of “minor importance”.
Which illegalities are of “minor importance” must be decided on the basis of a concrete overall assessment. Central points are the nature and extent of the infringement, and the significance of the deviation for the interests that the planning and building legislation must secure.
The municipality’s option to consider an illegality as an infringement of minor importance means in practice that the municipalities will to some extent be able to choose which illegalities are to be followed up and which are not.
The civil ombudsman has stated that the municipality’s possible decision not to pursue an illegality is not to be considered a single decision according to the Public Administration Act. There is therefore no right of appeal against such a decision.
If the municipality makes such a decision, it will normally mean a binding conclusion to the case.
Should sanctions be proportionate to illegalities?
It also follows from the Planning and Building Act that any sanctions must be in reasonable proportion to illegalities.
This means that a proportionality assessment must also be carried out. It must therefore be assessed whether the sanction provides a reasonable balance between general societal interests and the citizen’s demand for protection.
If proportionality has not been assessed, there may be a procedural error. The specific requirements that can be set for the justification must probably be adjusted according to how intrusive the decision is.