Home | | Contact Us

Supreme Court Finds Building Restri

Supreme Court Finds Building Restrictions Unconstitutional
Egypt’s Supreme Constitutional Court (“SCC”) recently declared the unconstitutionality of several provisions that place restrictions on the construction of buildings in place of an illegally demolished building.[1] The decision, published on April 9, struck down several executive decrees that prohibit the construction of buildings on a site in which another building was demolished without obtaining necessary license, except if the height of the new building does not exceed the height of the illegally demolished building.
Background
The case was referred to the SCC from the Administrative Court after the complainant challenged the administrative authority’s unwillingness to grant him a license to erect an eleven-story high building in Alexandria. The owner had previously obtained a license from the administrative authority for a one-story building, which he later demolished without obtaining necessary license. The Administrative Court had decided that the administrative authority’s failure to produce the necessary license, and the requirement that the new building only be as high as the illegally demolished building, was an infringement on the constitutional right to private property. In its 2009 decision, the Administrative Court decided to refer the issue to the SCC in order for the latter to determine the constitutionality of relevant provisions. In its decision, the SCC referred to previous decisions, in which it had also held the unconstitutionality of several similar provisions, as well as other regulations that imposed a blanket prohibition on the demolition of villas in Alexandria and in other Egyptian governorates.
Significance of the Case
The SCC’s decision declared the unconstitutionality of the following provisions:
  • Article 2 of the Order of the Prime Minister and the Deputy Military Commander No. 2 for the Year 1998, insofar as it prohibits the erection or the licensing of a building on a land where a previous building had been illegally demolished, except if the new building does not exceed the height of the old building. The decision also held that Article 3 (1) of the same order is invalid with regards to the same issue.
  • Article 11 (bis)(5) of the Executive Regulations of Law 106 for the Year 1976, also with regards to the same point.
The importance of the decision lies also in that it determined that the Minister of Housing may not – in general – impose regulations related to the height of buildings. The Court opined that Construction Law (Law 106),[2] did not include any specific restrictions on the height of buildings, except by restricting the height to 1.5 times the width of the street on which it is located, with a maximum height of 36 meters. The Law also gave the Prime Minister an exceptional authority to restrict the height of specific buildings or areas, in some specific cases. The SCC noted, however, that such authority was not granted to the Minister of Housing, and that any restrictions on height placed by the Minister of his own accord would therefore be unconstitutional. The SCC’s decision also noted that the above-mentioned Prime Minister’s Order exceeded its constitutional boundaries. The Order had been based on the powers of the President in accordance with the Emergency Law, which had been delegated to the Prime Minister. The SCC noted, though, that these powers had to be interpreted strictly in relation to national security emergencies, and that in all cases, this did not give the Prime Minister the power to effectively legislate.
Conclusion
The SCC’s decision is important for many reasons. It clarifies the particular issue at hand, namely restrictions on the height of a specific category of buildings, affirming that the constitutional protection of the right to private property means there shall be no restrictions on the height of a building being constructed on a land on-which another building was previously demolished without license. Moreover, it is important in confirming the boundaries of the authority of the Minister of Housing and the Prime Minister with regards to this particular issue.[3]   [1] Supreme Constitutional Court, Case No. 137 for the Judicial Year 34, Egyptian Gazette, Issue No. 14 (bis), 9 April 2016. [2] Presidential Decree-Law No. 106/1976 issuing the Construction Law, Official Gazette, Issue No. 37 (cont.), 9 September 1976. [3] It is to be noted, though, that the legal significance of this decision needs to be further clarified, given that a portion of the base law, namely Law 106/1967, has already been repealed in 2008 by the New Construction Law No. 119.  
Egypt’s Supreme Constitutional Court (“SCC”) recently declared the unconstitutionality of several provisions that place restrictions on the construction of buildings in place of an illegally demolished building.[1] The decision, published on April 9, struck down several executive decrees that prohibit the construction of buildings on a site in which another building was demolished without obtaining necessary license, except if the height of the new building does not exceed the height of the illegally demolished building.
Background
The case was referred to the SCC from the Administrative Court after the complainant challenged the administrative authority’s unwillingness to grant him a license to erect an eleven-story high building in Alexandria. The owner had previously obtained a license from the administrative authority for a one-story building, which he later demolished without obtaining necessary license. The Administrative Court had decided that the administrative authority’s failure to produce the necessary license, and the requirement that the new building only be as high as the illegally demolished building, was an infringement on the constitutional right to private property. In its 2009 decision, the Administrative Court decided to refer the issue to the SCC in order for the latter to determine the constitutionality of relevant provisions. In its decision, the SCC referred to previous decisions, in which it had also held the unconstitutionality of several similar provisions, as well as other regulations that imposed a blanket prohibition on the demolition of villas in Alexandria and in other Egyptian governorates.
Significance of the Case
The SCC’s decision declared the unconstitutionality of the following provisions:
  • Article 2 of the Order of the Prime Minister and the Deputy Military Commander No. 2 for the Year 1998, insofar as it prohibits the erection or the licensing of a building on a land where a previous building had been illegally demolished, except if the new building does not exceed the height of the old building. The decision also held that Article 3 (1) of the same order is invalid with regards to the same issue.
  • Article 11 (bis)(5) of the Executive Regulations of Law 106 for the Year 1976, also with regards to the same point.
The importance of the decision lies also in that it determined that the Minister of Housing may not – in general – impose regulations related to the height of buildings. The Court opined that Construction Law (Law 106),[2] did not include any specific restrictions on the height of buildings, except by restricting the height to 1.5 times the width of the street on which it is located, with a maximum height of 36 meters. The Law also gave the Prime Minister an exceptional authority to restrict the height of specific buildings or areas, in some specific cases. The SCC noted, however, that such authority was not granted to the Minister of Housing, and that any restrictions on height placed by the Minister of his own accord would therefore be unconstitutional. The SCC’s decision also noted that the above-mentioned Prime Minister’s Order exceeded its constitutional boundaries. The Order had been based on the powers of the President in accordance with the Emergency Law, which had been delegated to the Prime Minister. The SCC noted, though, that these powers had to be interpreted strictly in relation to national security emergencies, and that in all cases, this did not give the Prime Minister the power to effectively legislate.
Conclusion
The SCC’s decision is important for many reasons. It clarifies the particular issue at hand, namely restrictions on the height of a specific category of buildings, affirming that the constitutional protection of the right to private property means there shall be no restrictions on the height of a building being constructed on a land on-which another building was previously demolished without license. Moreover, it is important in confirming the boundaries of the authority of the Minister of Housing and the Prime Minister with regards to this particular issue.[3]   [1] Supreme Constitutional Court, Case No. 137 for the Judicial Year 34, Egyptian Gazette, Issue No. 14 (bis), 9 April 2016. [2] Presidential Decree-Law No. 106/1976 issuing the Construction Law, Official Gazette, Issue No. 37 (cont.), 9 September 1976. [3] It is to be noted, though, that the legal significance of this decision needs to be further clarified, given that a portion of the base law, namely Law 106/1967, has already been repealed in 2008 by the New Construction Law No. 119.