Illegal subjection to arbitrary building laws: how am I legally protected?
After establishing the existence of arbitrariness, the engineer is asked to consider the possibility of subjecting the arbitrariness to some law concerning the settlement of arbitrariness, based on a multitude of criteria.
The most recent law is Law 4495/2017. This contains definitions for the affiliation, i.e. the submission of a statement of calculation of the arbitrary fine under its provisions:
- Inclusion is the submission of a declaration in the electronic system and based on which the calculation amount of the single special fine is issued against. At this stage, changes are allowed and based on them, the payment scheme is adjusted and the consequences of suspending sanctions occur.
- Initial declaration of affiliation is the affiliation that is at the stage in which the fee paid in favor of the Greek State is entered into the electronic system.
- Final declaration of affiliation, is the declaration in which at least thirty percent (30%) of the single special fine has been paid and the relevant engineer's certificate can be issued.
- Delayed registration is a declaration in which the whole of the single special fine has been paid and all relevant supporting documents have been submitted to the electronic system.
The case of illegal affiliation
However, there are not a few cases where an affiliation, after a thorough check, is deemed illegal, because it goes against the prohibitive provisions of laws.
Cases, by way of example, where illegal affiliation may occur are:
- The recent composition of arbitrariness (after 7/28/2011)
- The incorrect measurement of arbitrariness
- The incorrect description of arbitrariness
- The incorrect depiction of the extent of arbitrariness, etc.
Legal protection against illegal entry
When an arrangement is considered illegal, in order to annul it, reasons establishing the illegality must be shown and:
- An application should be made to the competent YDOM and an appeal to the relevant SYPOTHA
- To apply for judicial annulment.
If the affiliation is allowed to stand, then based on the presumption of legitimacy, it continues to exist, with all the consequences this entails.
In the context of our discussion, the question arises whether the declaration on the inclusion of an arbitrary building in the regulations of chapter A' of N. 4178/2013, constitutes an administrative act and, in fact, enforceable and, by default, whether the rejection of the administrative appeal against it on behalf of SY.PO.TH.A. lacks enforceability or not. These last issues were resolved with the 2210/2020 decision of the Plenary of the Court, by which it was decided that the occurrence of the consequences provided for in the law (L. 4178/2013 and L. 4495/2017), activated by the submission of the relevant application - declaration of compliance with the law and the payment of the relevant fine and fee on the part of the interested party, becomes permissible by the acceptance of the request on the part of the Administration, and this acceptance, even though it is not manifested in an explicit and solemn way, must be considered to be intervened between, on the one hand, the application - declaration of affiliation and, on the other hand, the activation of the favorable regime of the laws on arbitrary.
Therefore, the acceptance of the statement and the relevant request it contains, coming from the Administration, is equivalent to an enforceable administrative act, subject to a request for annulment (CoS 419/2021).