1. Introduction
The zoning legislation enacted in order to prevent unplanned development and illegal construction activities in Türkiye requires construction activities to be carried out under a licence and subject to supervision. Within this framework, the suspension of construction activities that are initiated without a licence or continued in violation of the licence and its annexes constitutes a significant area of authority granted to the administration. The most tangible manifestation of this authority is the cease and desist order issued pursuant to Article 32 of Zoning Law No. 3194 (“Zoning Law”). Cease and desist orders are not only de facto sealing procedures but also administrative acts that directly constitute the basis for administrative sanctions and give rise to rights and obligations.
In practice, however, many such acts are subjected to administrative proceedings and annulled due to the issuance of cease and desist orders in violation of the provisions of the Zoning Law and other relevant legislation, or due to procedural and substantive deficiencies. Therefore, it is important to holistically assess the mandatory procedural and substantive elements that cease and desist orders must contain, the legal grounds for unlawfulness frequently asserted in annulment cases, and the standards of review shaped through the case law of the Council of State.
In this article, the legal nature of cease and desist orders, the procedure and legal basis for their issuance, the procedural and substantive violations frequently encountered in annulment proceedings, and the implementation problems that have emerged within the framework of judicial decisions will be discussed.
2. Definition and Legal Nature of the Cease and Desist Orders
A cease and desist order is the official record issued during the determination and sealing of a construction site, in cases where construction without a licence or in violation of the licence and its annexes is detected, in accordance with Article 32 of the Zoning Law. Although there is no explicit definition in the Zoning Law, Article 4 of the Planned Areas Zoning Regulation defines it as: “In the event that illegal construction is detected, either due to starting construction without obtaining a licence in any form or due to carrying out construction contrary to the licence and its annexes in licensed buildings, the current status of the building and the detected violations shall be documented in photographs, sketches, and writing by the technical personnel authorised by the relevant administration, and recorded in an approved document indicating that construction activity may not continue.”
In terms of its legal nature, a cease and desist order constitutes an administrative act, as it is a final and enforceable act issued by the administration, and it may be independently subject to an annulment action. Indeed, established case law of the Council of State confirms that cease and desist orders may be directly challenged through annulment proceedings. In this regard, an action for annulment may be filed against cease and desist orders within the 60-day time limit prescribed by Administrative Procedure Law No. 2577 (“APL”). In summary, although the cease and desist order is formally a record of determination, it is an administrative act that produces legal consequences, affects the rights of the concerned party, and is subject to judicial review.
On the other hand, the right to property is one of the fundamental rights enshrined in Article 35 of the Constitution of the Republic of Türkiye and may only be restricted by law, for the purpose of public interest. The cease and desist order forms the legal basis for a demolition decision to be issued pursuant to paragraph 5 of Article 32 of the Zoning Law and for a zoning fine to be imposed pursuant to Article 42 of the same Law. Considering that a demolition decision constitutes a restriction on the right to property and represents a public enforcement activity carried out by the administration, the administration must comply with certain legal criteria while executing such powers. Therefore, if the cease and desist order is not duly issued in accordance with the applicable procedure, any demolition or zoning fine based thereon shall also be unlawful. Accordingly, it is of critical importance that the cease and desist order be properly and lawfully issued.
3. Procedure and Mandatory Content of the Cease and Desist Order
Article 32 of the Zoning Law stipulates that if it is determined that a building has been constructed without a licence or in violation of the licence or its annexes, construction must be stopped immediately. In this context, as soon as the competent authority becomes aware of the situation, an on-site inspection is carried out, and the technical personnel document the current condition of the structure and the zoning violations in the cease and desist order. Accordingly, the construction is immediately sealed and halted. The sealing process is executed by posting the order in a visible part of the building, and once it is posted, the order is deemed to have been served on the building owner. However, the Zoning Law also requires that one copy of the cease and desist order be delivered to the local headman and another copy be sent to the Provincial Directorate of Environment and Urbanization.
Moreover, Article 32 of the Zoning Law prescribes the minimum elements that must be included in cease and desist orders, and these mandatory components have been clarified through the case law of the Council of State. In this regard, under the established precedents of the Council of State and other applicable legal provisions, it is clear that a cease and desist order must be prepared to include the following elements:
- One copy of the order must be posted on the building, one copy must be delivered to the headman, one copy must be sent to the Provincial Directorate of Environment and Urbanization, and a photograph must be taken showing the posted order on the building;
- It must be clearly stated that a deadline is granted to the building owner, and that a demolition decision will be issued if the violation is not remedied within this period;
- The identity of the building owner must be specified in detail;
- The order must be issued by technical personnel, who are to be designated in accordance with the characteristics of the specific case;
- It must be determined whether the construction activity has been completed and whether the building is in use;
- The zoning violations must be determined in a concrete and detailed manner, including their measurements;
- The area affected by the violation must be specified;
- Each non-compliance must be identified separately for each individual structure.
A cease and desist order issued in compliance with the above-mentioned procedural and substantive requirements forms a solid legal basis for subsequent actions such as demolition and administrative fines. Conversely, orders issued in violation of these requirements are subject to annulment proceedings.
4. Grounds for Annulment within the Framework of Council of State Decisions
In practice, cease and desist orders are annulled by administrative courts for various reasons. When the decisions of the Council of State and regional administrative courts are examined, the primary grounds for the annulment of such orders, when deemed unlawful, can be summarised as follows:
- Lack of Concrete and Detailed Determination: The most common ground for annulment is the issuance of orders with vague and insufficient content. In almost every decision, the Council of State emphasises the necessity of “a concrete and detailed determination of the violations, including their measurements”.
- Inadequate Measurement and Sketch: If the measurement or area of the violation is not specified in the report and not supported by a sketch, this is also a ground for cancellation. In particular, failure to calculate and write down the gross area in the determination of unlicensed structures or failure to specify the dimensions of the section added contrary to a licensed structure is considered unlawful.
- Contradictory or Inaccurate Information: Failure to specify the dimensions or area of the violation in the order, or to support it with a sketch, also constitutes a ground for annulment. For instance, if the measurement indicated in the “condition of the structure” section of the order does not match the measurement shown on the sketch, any administrative fine imposed without resolving this contradiction has been deemed unlawful.
- Multiple Structures/Circumstances of Violation: In practice, it is sometimes observed that a cease and desist order is kept for more than one illegal building on a parcel. If the contraventions belonging to different persons or different in nature are gathered in a single document, the Council of State generally considers this as unlawful . The predominant opinion is that a separate report should be prepared for each structure.
- Deficiencies in Notification and Deadlines: Failure to duly serve the cease and desist order also constitutes a ground for annulment. If it is not ensured that the report is posted on the building and left to the headman as required by the Zoning Law or if this issue is not stated in the report, cease and desist order should be considered unlawful. In addition, forgetting to give a 30-day period or writing a shorter period in the minutes is also considered unlawful.
- Lack of Authority and Authorisation: The issuance of a cease and desist order by an unauthorised body or person is also a ground for annulment. For example, it would be unlawful for a metropolitan municipality to issue the order if the sealing authority lies with the district municipality, or for the governorship to act without a municipal council decision.. Furthermore, if the official signing the order is not authorised, such as someone who is not a technical staff member, the action is invalid. In such cases, the court may annul the order due to a “defect in the element of competence.”
The above represent the most frequently encountered annulment grounds in judicial decisions. In addition to these, under administrative law, the legality of an administrative act is assessed in terms of both form (procedure) and substance (content). In this regard, it is first examined whether the order has been formally issued in accordance with the law, and then whether the substantive legal grounds are factually accurate and lawful.
5. Conclusion
Cease and desist orders issued under Article 32 of the Zoning Law are among the first and most effective intervention tools available to the administration against unlicensed and/or unauthorised constructions. However, considering that these cease and desist orders are not merely a sealing procedure but also serve as the legal basis for sanctions such as demolition and administrative fines, it is of great importance that they are issued in strict compliance with procedural requirements and applicable legislation.
As discussed in detail in this article, the cease and desist order constitutes an administrative act and, as such, may be subject to an annulment action as of the date of its notification. The validity of such orders depends not only on the formal elements specified in the Zoning Law, but also on the concrete criteria shaped by the case law of the Council of State. Orders that are not issued by authorised personnel, that fail to set out the violation in a measurable and detailed manner, that are not duly served, or where the required period is not granted to the building owner, are deemed unlawful, not only in themselves but also with respect to any dependent administrative actions, and are annulled.
Therefore, the issuance of a cease and desist order should be regarded as a multifaceted process, in which technical assessment, legal qualification, and procedural safeguards must be considered collectively. It is a vital obligation for administrative authorities to comply with the legislation and judicial precedents when establishing such acts, in order to ensure the protection of both the public interest and individuals' fundamental rights. Otherwise, the establishment of such acts may lead to irreparable legal consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
