In Article 59 of the Planned Areas Zoning Regulation, titled "Construction Activities That Do Not Require a Building Permit"; “Simple repairs and alterations, applications of collapsible and folding glass panels on balconies, construction of balustrades, pergolas, gazebos/arbours and the like, and repair of partition walls, garden walls, wall coverings, chimneys, eaves, roofs and similar elements and window replacement are not subject to license. ” provision is included.

We quote the opinions of a lawyer.

Avukat Gökhan BİLGİN

A lawyer in Istanbul

Address: Mecidiyeköy, Çanakkale TR, Büyükdere Cd. no:66/2, 34360 Sisli/Istanbul

Phone: 0532 205 27 19

ENTRANCE

According to Article 21 of the Zoning Law No. 3194, with some exceptions, it is obligatory to obtain a license from the municipality or special provincial administration before constructing a building.

One of the problems frequently encountered in practice is whether a pergola and porch can be built without obtaining a license from the municipality or special provincial administration.

Pergola and Porch are defined in the 4th article of the Planned Areas Zoning Regulation. According to this article;

– Pergola: In the garden, on the terrace, provided that the facades of the buildings are not changed, structures made of light construction materials by uprights and dense beams, on which green vegetation can be wrapped, and which can be built without a building permit,

– Porch: It is defined as three-sided open covers without partition walls made of lightweight material adjacent to the building, provided that the structure does not violate the approach distance to protect from rain, sun and wind.

In Article 59 of the Planned Areas Zoning Regulation, titled "Construction Activities That Do Not Require a Building Permit"; “Simple repairs and alterations, applications of collapsible and folding glass panels on balconies, construction of balustrades, pergolas, gazebos/arbours and the like, and repair of partition walls, garden walls, wall coverings, chimneys, eaves, roofs and similar elements and window replacement are not subject to license. ” provision is included.

In the judicial decisions we have mentioned in more detail below, it is accepted that the pergola and the porch are essentially not subject to license. However, in some cases, there are also judicial decisions regarding the possibility of demolition and fines, by accepting productions that are described as pergolas or porches, subject to license.

As consistently emphasized in the decisions of the Council of State, in order to accept that the pergola and porch are not subject to license; “Generally, it should not have been built within the scope of the building definition regulated in the Zoning Law, therefore it should have been built with light building materials in a way that will not create a closed area, open around, for the purpose of shade and not change the facade of the building.”

In this article, we will examine the qualities that the pergola / porch should have in order to avoid any sanctions and the points to be considered.

1. MATERIAL USED

In the Planned Areas Zoning Regulation, it is regulated that pergolas and the like are not subject to a license, and it has been accepted in the judicial decisions that the constructions such as porches and pergolas that are built in accordance with the definition in the regulation do not require a license. When we consider these issues, it is necessary to base on the definitions in the Planned Areas Zoning Regulation, which we have mentioned above, in determining the quality of the pergola and porch that are not subject to a license.

In the regulation, it is stated that "light material should be used" while defining the pergola and porch. In stipulating the use of lightweight materials, it is aimed not to affect the carrier element of the main structure and not to gain an additional construction area. It is reasonable and appropriate to envisage that the production, which is not subject to any control of the administration because it does not require a license, will be made of materials that will not affect the carrier system and will not result in space gain.

The regulation did not limit the material to be used in the manufacture of pergolas and porches, it was content to specify the general nature of the material and its intended use. There is no strict approach to which materials will be used in judicial decisions, and decisions are made on the basis of the nature of the material used and the purpose for which it is used, according to the characteristics of the concrete case.

In the decisions of the Council of State; porch whose carrier system is made of wood, covered with light and simple material[2]; although there is an annotation that “it will not be covered with any material” in the architectural project, the pergola is not completely covered but has a collapsible system on it[3]; Iron profile legs and a porch constructed with wooden material on iron profiles and covered with polyester material such as polycarbonate etc.[4] are accepted as a production that does not require a license if they meet the other conditions.

Again, there are many judicial decisions that covering the pergola/porch with a tile roof does not require a license.[5]

In fact, the Council of State Council of Administrative Litigation Chambers decided that the 37.5 m² production, made by erecting six 18 cm concrete columns, was not subject to a license on the grounds that it was made to protect from sun and rain, that it did not form an open and closed area, and that, as such, it had the characteristics of a pergola that does not affect the bearing elements of the main structure. [6] In the said trial, the court of first instance; The Council of Administrative Lawsuits of the Council of State, which examined the file as a result of this resistance; although it agrees with the court of first instance that being open around it will not remove its structural quality; decided that pergolas manufactured on concrete columns should not be considered within the scope of the definition of “structure” in Article 5 of the Law No.

As can be seen, in terms of whether the pergola and the porch are subject to a license, rather than the quality of the material used in its construction, it is determined in the regulation; It is decisive that it does not go beyond the purpose of protection from rain and sun, does not create a closed area and is not manufactured in a way that affects the bearing elements of the main structure.

2. NATURE AND INTENDED USE

The quality of the pergola and porch may vary depending on the location or the needs of the builder. The main thing is that it meets the conditions sought in the regulation.

The Council of State has ruled that the pergola, which is open only in front and on the right side, does not affect the quality of the open roof terrace.[7] In other words, as long as it does not create a closed area, it is not necessary that all 3 sides of the pergola be open. In the aforementioned decision, it was decided that the pergola did not require a license, although it was stated in the expert's report that the roof slope height and the shape of the roof changed due to the change in the appearance of the building and its purpose of use.

In the decision of the Council of State Administrative Litigation Chambers in a similar situation; The allegations that the porch changed the roof slope, that it was larger than the dimensions specified in the zoning regulation of the province where it was located, and that it was built in violation of the project were also discussed. [8]

In a file where a porch, which was built adjacent to the building to protect it from sun and rain, is open, the carrier system is made of wood and covered with light and simple material, is surrounded by collapsible glass; it has ruled that the use of foldable glass will not be considered as creating a closed area and that a porch manufactured in this way is not subject to a license.[9]

Another issue in evaluating whether the pergola and porch are subject to a license is that they are made of detachable material. In this regard, the Council of State, if the purpose of the regulation is not exceeded, iron, wood, etc., which are fixed to the concrete of the main structure. accepts that the profiles do not affect the detachability and therefore the license exemption.

It is decided that the production of pergolas/porches, for which the pergolas/porches, which are subject to action on the claim that they do not have demountability properties due to the transfer of wooden and metal profiles to concrete, in a way that will not form a closed area, for the purpose of protection from sun and rain, in a quality that will not affect the bearing element and in accordance with the definition of porch, are not subject to a license.[10]

Production in the form of a "closed arbor" made by pouring concrete on the ground and closing it; It has been accepted that it is not a pergola built with light building materials and is open around, for shade purposes, but as a structure that requires a license.[11]

3. WHERE IT MADE

When determining whether the pergola and porch are subject to a license, in addition to the materials, dimensions and how they are manufactured, where it is made is also important. Whether the pergola and the porch occupy the common use area, garden and drawing distances on the site can be decisive in the license.

In judicial decisions, a dual distinction is made regarding the production of pergolas and porches made within the site. Decisions have stabilized that pergolas and porches built in common areas open to the use of everyone in complexes consisting of multi-storey blocks require a license, and that the procedures in the Condominium Law should also be followed.[12]

On the other hand, within the scope of the Condominium Ownership Law, it is accepted that the construction of a pergola and porch in the front or back garden of the related house, which is reserved for independent use, does not require a license, in the estates that generally consist of two-storey detached houses.[13]

Any building in the blueprint of the architectural project of the building has been selected at the entrance at the affordable price, subject to the periods of the plan to be made inside the ground inside the ground. [14]

Contrary to the project, the construction of a pergola porch at the front garden distance at the same level as the pedestrian sidewalk was not considered subject to a license.[15]

The closure of the ground terraces and the entrance shelf on the front and rear facades of the independent section (due to the creation of a closed one by creating a winter garden) is considered subject to license since it does not have the characteristics of a pergola.[16]

Aluminum joinery pergola built without permission and license on the roof of the registered building as an immovable cultural property (ancient artifact) to be protected; As it is subject to a license according to the Plan Provisions of the Conservation Revision Development Plan, it is forbidden to make any construction and physical interventions to the old building without the permission of the conservation regional board according to the Law No. 2863, and because the pergola changes the facade appearance and roof slope of the registered structure, it cannot be considered within the scope of simple repair and modification. It was accepted.[17]

CONCLUSION

There is no detailed regulation in the laws and regulations on whether the pergola and porch are subject to a license. Details on this issue have emerged as a result of the interpretation of the provisions of the law and regulation by the judicial authorities.

The fact that there are different decisions about pergolas and porches of the same quality in judicial decisions causes confusion. Making different decisions for the productions of the same nature, the area where the pergola and the porch are made, small differences in the materials used, the dimensions of the production, the zoning regulation in the province, etc. due to reasons.

In addition to all this, there is a consensus in the judiciary about the qualities that a pergola/porch should have, unless there is a special situation such as the building being located in an area such as a protected area where construction is prohibited, or in a common area belonging to the site.

According to judicial decisions, in order for a building to be considered not subject to the license in Article 63 of the Planned Areas Zoning Regulation:

– It has not been built within the scope of the building definition regulated in the Zoning Law in general,

– Does not create a closed area,

– To be open around, for shade purposes,

– It is made with light building materials in a way that does not change the facade of the building,

– It is made of material that will not damage the carrier system,

– Mounting in a way that does not damage the carrier system,

– It should be done for the purpose of protection from sun and rain and should not exceed this purpose.

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[1] Decision of the 6th Chamber of the Council of State, dated 12.09.2019 and numbered E:2019/5842, K:2019/7244

[2] Decision of the 14th Chamber of the Council of State, dated 23.01.2018 and numbered E:2015/10619, K:2018/18

[3] Decision of the 14th Chamber of the Council of State, dated 09.05.2016 and numbered E:2014/3587, K:2016/3661

[4] The decision of the 14th Chamber of the Council of State, dated 31.03.2015 and numbered E:2013/10173, K:2015/2415

[5] In the decision of the 14th Chamber of the Council of State, dated 18.03.2015 and numbered E:2013/2651, K:2015/1974; It has been accepted that the porch constructed with a wooden cladding board and tile roof covering on three open wooden pillars and wooden beams is not within the scope of the building subject to the license in Article 5 of the Zoning Law No. 3194. (The decisions of the 14th Chamber of the Council of State dated 28.04.2015 and numbered E:2013/9724, K:2015/3330; dated 29.01.2015 and numbered E:2014/9168, K:2015/688 are also in the same direction)

[6] The decision of the Council of State Administrative Case Divisions dated 17.10.2008 and numbered E:2005/400, K:2008/1801

[7] The decision of the 14th Chamber of the Council of State, dated 31.03.2015 and numbered E:2013/10173, K:2015/2415 (The pergola, which is the subject of the decision, was built on the roof terrace of the independent section and has the dimensions (5.70×8.20) = 46.74 m². Iron profile legs and iron profiles are made with wooden material, the top is covered with polyester material, such as polycarbonate, etc., the front and right sides are not covered.)

[8] The decision of the Council of State Council of Administrative Case Divisions, dated 17.03.2014 and numbered E:2011/393, K:2014/882 (In the expert report, it is stated that the open terrace is closed with a porch and the use of the attic floor is included in the 18/45 article of the Ankara Metropolitan Municipality Zoning Regulation. contrary to this, it has a width of more than 5 meters, exceeds approximately (1/3) of the floor area of ​​the building it belongs to (together with the changes made on the terraces of other flats), and the roof slope is determined as 40% at the most according to the 54th article of the same Regulation, but Although it was stated that the porch was built higher than the roof slope and as a different roof and that it was against the architectural project of 18/05/2001 and required a license, the Council of State decided that the production was in the nature of a pergola that is not subject to a license.)

[9] The decision of the 14th Chamber of the Council of State, dated 15.02.2017 and numbered E:2014/2429, K:2017/786

[10] The decision of the 6th Chamber of the Council of State, dated 20.06.2019 and numbered E:2019/4323, K:2019/6183 (The manufacturing subject to the decision is in the shop on the ground floor of the building (12.00×3.79) in dimensions of 45.48m², the metal profile of the carrier profile rafters It is a porch made with a collapsible system, which is mounted on the building with bars.)

[11] The decision of the 14th Chamber of the Council of State, dated 19.06.2018 and numbered E:2015/9066, K:2018/4750

[12] Decision of the 6th Chamber of the Council of State, dated 06.11.2019 and numbered E:2019/6109, K:2019/10346

[13] The decision of the 14th Chamber of the Council of State, dated 18.03.2015 and numbered E:2013/2651, K:2015/1974

[14] The decision of the 14th Chamber of the Council of State, dated 21.04.2016 and numbered E:2014/3906, K:2016/3221

[15] The decision of the 14th Chamber of the Council of State, dated 28.04.2016 and numbered E:2014/4707, K:2016/3561

[16] 6th Chamber of the Council of State, its decision dated 12.09.2019 and numbered E:2019/5842, K:2019/7244 ((In the decision of the 14th Chamber of the Council of State, dated 14.03.2013 and numbered E:2011/16481, K:2013/1797) In addition, contrary to the approved architectural project, it has been accepted that the production in the form of covering the area of ​​​​approximately 4.50×10.50 m in front of the shop on the ground floor with wall + glass and glass material and participating in the use of the shop is considered to be subject to license since it does not have the characteristics of a pergola and porch.)

[17] Decision of the 14th Chamber of the Council of State, dated 10.03.2015 and numbered E:2013/7679, K:2015/1793

Pergola principles in the zoning law!

Shading elements made of open or semi-open wood or iron materials are called “Pergola”.

The principles regarding the pergola, whether the pergola is subject to a license permit or not, are explained in the Zoning Law, regulation and Supreme Court Decisions.

In the 5th article of the Zoning Law No. 3194, the building; It is defined as permanent or temporary, official and private underground and surface construction on land and water, and fixed and mobile facilities including their addition, modification and repair.

In the first paragraph of the 21st article of the Law, it is obligatory to obtain a building permit from the municipalities or governorships, except for the exception stated in the 27th article, for all the buildings within the scope of this Law, and in the 3rd paragraph, however, joint, interior and exterior plaster, paint, whitewash, gutter, creek , joinery, flooring and ceiling coverings, electrical and plumbing repairs, roof repair and transfer of tiles and other modifications and repairs that do not affect the bearing element to be specified in the zoning regulations to be prepared by the municipalities in accordance with the locality are not subject to a license.

In Article 63 of the Type Zoning Regulation for Municipalities Excluded from the Scope of Law No. 3030, it is stated that simple repairs and modifications, construction of balustrades, pergolas and the like, and repairs of partition walls, garden walls, wall coverings, chimneys, eaves and similar elements are not subject to license. Accordingly, pergolas do not need to be licensed.

These principles are IDDGK. It is also stated in the Supreme Court Decision dated 17.10.2008, 400/1801. In accordance with the Supreme Court decision, after the examination of the file, in the control carried out on the immovable belonging to the plaintiff on 30.5.2001, six oval-shaped lS cm. It is understood that the construction was stopped after being sealed, and the process regarding the demolition of the building, which was not licensed within one month from this date, and a fine of 500.000.000.- TL on behalf of the plaintiff, was established.

In this case, since it was concluded that the pergola, which is completely open, was built to protect from the sun and rain, as stated in the building holiday report, which is the basis for the establishment of the transaction subject to the lawsuit, it is concluded that it does not form a closed one and thus does not affect the carrier element, it is subject to the license in Article 5 of the Law No. 3194. It has been concluded that the pergola, which is not within the scope of the definition of “Building”, is not subject to a license in accordance with the above-mentioned provisions, and that there is no compliance with the legislation in the transaction subject to the lawsuit.

What is a Simple Repair and Modification that does not require a license according to the Zoning Law?

According to Article 21 of the Zoning Law; joint, interior and exterior plaster, paint, whitewash, gutter, creek, joinery, flooring and ceiling coatings, electrical and sanitary system repairs, roof repair, tile transfer, other modifications and repairs that do not affect the carrier element to be specified in the zoning regulations to be prepared by the municipalities according to the characteristics of the location. not subject.

According to the 63rd article of the Planned Areas Zoning Regulation, which is a similar provision, simple repairs and modifications, folding and folding glass panel applications on balconies, construction of balustrades, pergolas, gazebos / arbors and the like, and partition walls, garden walls, wall coverings, chimneys, eaves, Repair of roof and similar elements and replacement of windows are not subject to license.

Provided that it does not affect the carrier system and consent is obtained pursuant to Law No. 634; Thermal insulation applications to be made by practitioners with a professional qualification certificate, with an energy identity certificate class of at least "C" in buildings, and solar-based renewable energy systems to be made for the building's own needs are not subject to license. It is obligatory to prepare the application projects of these and submit them to the relevant administration together with the undertaking to undertake the technical responsibility, to adhere to the architectural appearances in the project of the building and to obtain permission from the administration. In a parcel for which a building permit application has been made, following the approval of the architectural project by the relevant administration, the approval of the issuing administration is provided, provided that the responsibility for technical responsibility and occupational safety is assumed, the practices are carried out by the site chief, and a notary undertaking is given by the owner and the contractor that the building will not start the construction without obtaining a building permit. excavation permit can be granted. In order for this permission to be granted, it is obligatory to include the subject of undertaking the responsibility in the undertakings and contracts of the technical responsible and site supervisor. However, in case of piles, sheet piles, retaining walls and similar applications at the excavation site, the projects of these structures must be approved and licensed.

It is obligatory to obtain a license in order to carry out major repairs and modifications. According to the 58th article of the Planned Areas Zoning Regulation, the fundamental repair and modification of the existing building can be made in accordance with the provisions of this Regulation and other relevant legislation, provided that it does not contradict the provisions of the current legislation. However, it is obligatory to obtain a license in order to carry out additional fundamental repairs and modifications. In the case of new construction, additional and substantial modifications, for which a building permit has been obtained, later changes are required, the architectural project must be re-arranged. If this change necessitates changes in the static and installation principles of the building, necessary changes are also made in the requested documents. The dates of these projects and the information of the authors are written on the building permit.

According to the legislation and the case law of the Council of State, whether a repair requires a license depends on some criteria. These criteria are explained below.

Not Affecting the Carrier System

The first criterion is whether the construction to be carried out changes the static system of the building. If the modification makes a change in the carrier system of the building, it is subject to license regardless of its nature. The condition of not affecting the carrier system is clearly mentioned in Article 59 of the Planned Areas Zoning Regulation.

For example, a facade cladding system that does not affect the bearing elements and static system of an obsolete building is not within the scope of works subject to license[1]. The removal of the wall between the individual parts of a building is not subject to a building permit. Likewise, opening a door on a common wall for the purpose of combining two flats belonging to the same person in an apartment is not subject to license since it does not affect the bearing element[2]. Removing the roof and replacing it with a steel construction covered with eternit is not subject to license since it does not affect the structural system of the building[3]. On the other hand, the wooden pergola, which affects the appearance of the building and should be considered as a major repair and modification, is subject to a license[4].

Not Creating a Closed Space

The second criterion is whether a new closed area has been gained other than the floor area. As with the closing of the open balcony, if the renovation provides an increase in the floor area, the renovation is subject to the license. For example, removing the walls of the recessed balcony and combining it with the rooms in the independent sections is not subject to license, while closing the walls of the open (exit) balcony is subject to license.

Covering the recessed balcony with aluminum frame and glass is not subject to license[5]. Because by closing the recessed balcony, no new and extra space is gained except the floor area. With the modification made in this way, there is no violation of the pulling distance, and the modification does not affect the carrier elements.

On the other hand, closing the open balcony results in the acquisition of a new closed area outside the floor area. Therefore, a modification license must be obtained in order to close the open balcony[6]. Moreover, the fact that the material used to close the open balcony is PVC blinds or that it is demountable does not change the situation[7].

Compliance with Municipal Zoning Regulations

According to Article 21 of the Zoning Law; joint, interior and exterior plaster, paint, whitewash, gutter, creek, joinery, flooring and ceiling coatings, electrical and sanitary system repairs, roof repair, tile transfer, other modifications and repairs that do not affect the carrier element to be specified in the zoning regulations to be prepared by the municipalities according to the characteristics of the location. not subject. For this reason, it is necessary to pay attention to the restrictions imposed in the zoning regulations of the municipalities.

Compliance with the Property Ownership Law

According to article 19 of the Law No. 634 on Condominium Ownership, one of the flat owners cannot have construction, repair and facilities, exterior whitewash or paint in a different color in the common areas of the main real estate unless the written consent of four-fifths of all flat owners. However, if it has been determined by the court that a malfunction in the common places and facilities has damaged the main structure or an independent section or sections, and that it must be repaired urgently or that the main structure must be strengthened, the consent of the flat owners is not sought for this repair and strengthening in accordance with the project and technique.

The flat owner cannot make any repairs, installations or changes that may damage the main structure in his own independent section. Repairs, installations and changes that will not harm the main structure can be made in the connected parts of the independent sections that are connected to each other with the ceiling, floor or wall, with the joint consent of the owners of this section.

The same condition is clearly stated in Article 59 of the Planned Areas Zoning Regulation.

[1] 6th Chamber of the Council of State, 03.04.2006, M: 2004/1971, M: 2006/1502

[2] 6th Chamber of the Council of State, 06.03.1991, M: 1989/996, F: 1991/363

[3] 6th Chamber of the Council of State, 28.03.1989, M: 1988/858, F: 1989/659

[4] 6th Chamber of the Council of State, 14.05.1990, M: 1988/2941, F: 1990/893

[5] Council of State Administrative Case Chambers, 15.03.2007, M: 2004/2182, K: 2007/353

[6] 6th Chamber of the Council of State, 16.02.1993, M: 1992/482, F: 1993/509

[7] 6th Chamber of the Council of State, 08.05.2006, M: 2005/98, K: 2006/2497

Opinions of lawyer Gökhan Bilgin are quoted from hukikihaber.net. 

The Pergola Principles of the Zoning Law have been taken from the website Emlakkulisi.com.