The fact that a property lies in a protected site (sit) does not mean that ownership passes to the state automatically; the powers of use and construction are limited according to the protection status. The route to follow varies according to whether the area is an archaeological, urban, historical or natural site. First the registration decision, the boundary map and the conservation conditions should be obtained; objection to the status, project permission and compensation claims should be assessed separately.
Why is the type of protected site the first question?
The statement “my plot is in a protected site” does not by itself explain the legal consequence. In an archaeological site, the underground and above-ground cultural layers are in the foreground; in an urban site, the integrity of the historic environment; in a natural site, natural values and ecological features. A property may also be subject to more than one protection status. Coastal, forest or special environmental protection provisions may apply in addition.
How does the degree of an archaeological site affect construction?
Principle Decision No. 658 sets different conservation and use principles according to the degree of an archaeological site. The conservation approach is very strict in first-degree areas; second-degree and third-degree areas have their own conditions. Being third-degree does not mean “free construction”. The process provided for by the plan, the museum examination and the relevant board decisions must be completed.
Repair of an existing building, a new building, agricultural use, infrastructure and excavation should not be regarded as subject to the same permit regime. The absence of a visible remain on the parcel does not by itself prove that there is no protected-site quality. The integrity of the area and the data under the ground may be included in the assessment.
Which authorities are competent in a natural site?
In natural sites, the powers of the Ministry of Environment, Urbanization and Climate Change and of the units for the protection of natural assets are taken into account. The conservation board for cultural assets and the commission for the protection of natural assets are not the same body. In the categories of natural sites, the distinction between strictly protected sensitive area, qualified natural protection area and sustainable protection and controlled-use area is important.
An automatic matching from an old natural site degree to the new category should not be made. The current registration decision and boundary must be seen. That a particular activity may be considered in a category does not show that the parcel owner has been granted unconditional permission. In addition, the order of competence may differ in places with special area management.
How is the protected-site status learned, and which documents are obtained?
The annotation in the land registry record is an important starting point; however, the examination should not be limited to it. The board or Ministry decision, the annexed coordinated map, the identification report, the announcement information, the conservation-oriented zoning plan and the transitional-period conditions should be requested from the relevant administration. If the parcel’s old number has changed, the linking records should also be obtained.
Is an online parcel query sufficient?
Online maps facilitate a preliminary examination. However, because of scale, coordinate system or update date, there may be a difference between what appears on screen and the approved boundary. For a purchase or for preparing an action, the act obtained from the relevant administration and its annexes must be taken as the basis. An overlay prepared by a survey engineer shows whether the whole of the parcel or only a part of it is affected.
In the pre-contract examination, the seller’s statement that “the protected-site status will soon be lifted” does not replace an official decision. Zoning rights, the cost of restoration and the effect of the permit process on financing should be investigated together. Purchasing with knowledge of the restriction may also matter in assessing certain claims raised afterwards; this does not mean that all rights of application are lost.
How are an objection and an annulment action against a protected-site decision prepared?
The subject of the objection must be chosen clearly: the declaration of the area as a protected site, a particular part of the boundary, the degree or category, the conservation-oriented plan, or rejection of a permit application are different acts. Making one of them the subject of an action does not by itself preserve the periods for the others. If there are decisions of several dates about the same parcel, it should be determined which decision produces the current legal effect.
What is the time limit for a cultural assets board decision?
Article 18 of the regulation on the conservation boards provides for an objection to the Supreme Council for Conservation within 60 days of notification or announcement of a regional board decision. The objection is assessed by the Ministry and, if deemed necessary, placed on the Supreme Council’s agenda. This route is not a general objection system to be applied as it stands to natural-site acts.
If there is no special period in administrative justice, the general period for suing is 60 days. The effect of an application made in accordance with Article 11 of the Administrative Procedure Law (İYUK) on the period is calculated separately. It should not be assumed that the period for suing is automatically extended by looking at the board’s agenda and decision time. The announcement date, personal notification and documents of knowledge should be assessed file by file.
On which evidence should the grounds for annulment rest?
Against a conservation decision, saying merely that the property’s value has fallen may not be sufficient. The scientific basis of the identification report, the integrity of the area, why the boundary was drawn at that point, the opinions of institutions and the reasoning of the decision should be examined. The relevant specialisms may include archaeology, art history, urban planning, biology or geology; the panel of experts is determined according to the dispute.
An expert report containing concrete data at parcel scale is more useful than a general objection. The report should separate the findings at the date of the protected-site decision from the current situation; it should be borne in mind that the mere presence of unlicensed buildings in the surroundings does not give rise to permission on one’s own parcel. Other unlawful practices do not automatically provide a basis for a claim of equality.
Are a stay of execution and a building permit the same thing?
Filing an annulment action does not make the protected-site decision ineffective by itself. For a stay of execution, the conditions in Article 27 of the İYUK must be explained together. Instead of a mere expectation about a future sale price, what the concrete and imminent damage is must be documented.
The scope of the court’s decision must also be read separately. Interim protection granted regarding the status or a rejection decision does not take the place of a municipal permit or the board’s project approval. Carrying out excavation or intervention without permission while the protection status continues may give rise, besides administrative sanctions, to criminal liability under Law No. 2863.
Can expropriation, land exchange and compensation be requested?
A protected-site decision does not mean that every property will be expropriated immediately. Article 15 of Law No. 2863 and the related provisions contain expropriation and, under certain conditions, mechanisms of exchange with Treasury properties. The conditions must be examined separately in terms of the type of status, the absolute construction prohibition, the plan and the characteristics of ownership. It cannot be said that the same right of exchange exists in all types of protected site.
For compensation, the duration of the restriction, the owner’s actual possibilities of use, the outcome of expropriation or exchange applications and the burden imposed on the owner are important. That the administrative decision is lawful does not entirely remove the proportionality assessment with respect to the right to property. On the other hand, not every long-term restriction requires payment of the full value of the property.
What does the Constitutional Court’s Arzu Mülayim and Others decision say?
In Arzu Mülayim and Others, Application No: 2017/25436, 21.07.2020, the Constitutional Court (AYM) assessed the exchange and compensation process concerning co-owned property located in a first-degree archaeological site. The Court held that the right to property had not been violated for the applicants whose complaints it examined on the merits, taking into account that exchange had the potential of an effective remedy in the concrete case and that the application concerning it had not been pursued appropriately.
The decision deals with the difference between the application of all the parcel owners within the same block and the joint disposition by the owners of a single co-owned parcel. These two conditions must not be confused. The ruling does not mean that compensation will be refused in every protected site; it shows the concrete importance of the available remedies and of the process followed by the owner. The separate procedural decision given for one of the applicants is also distinct from the result on the merits.
How should the application file be organized?
- The registration decision, the boundary map and the scientific identification file should be obtained.
- The land title, the co-ownership structure, the current use and the permitted buildings should be documented.
- The dates of announcement, notification, applications and replies should be gathered in a single schedule.
- The requests for lifting of the status, for the grant of permission and for remedying the damage should be kept separate.
- The technical expert opinion and the legal grounds of the application should be consistent with each other.
Conclusion
For a property located in a protected site, the solution depends first on determining the correct status and the competent authority. The conditions of the routes of objection, project permission, land exchange and compensation differ. When scientific reports, the real effect on use and a complete application history are assessed together, the owner’s rights can be protected more soundly.
Related articles: Objection to the Coastal Edge Line and Annulment Action: Title Deed, Construction and Compensation Rights; Rejection of a Project by the Conservation Board: Objection, Annulment Action and Reapplication; Protected Sites and Conservation Decisions
Frequently Asked Questions
Can a property in a protected site be sold?
If there is no special bar on sale, transfer of ownership may be possible. However, the conservation status does not disappear on sale; the buyer should investigate the permits and conditions of use.
Can a building permit be obtained immediately in a third-degree archaeological site?
No. A conclusion on construction cannot be drawn without assessing the relevant plan, the principle decision, and the board and museum processes.
If there is no protected-site annotation in the land registry, is the area unprotected?
This conclusion cannot be reached from the land registry alone. The current registration decision and the approved boundary must also be examined.
Does a protected-site decision always give rise to compensation?
No. The effect and duration of the restriction, the available remedies and the applications are assessed in the concrete case.
Sources and legal bases
- Law No. 2863 - Ministry text, Articles 7, 9, 11, 15, 17, 61.
- Principle Decision No. 658, conservation and use conditions for archaeological sites.
- Regulation on the conservation boards, Article 18 and the footnote on annulment.
- Ministry of Environment, Urbanization and Climate Change announcements on protected sites.
- Administrative Procedure Law No. 2577 (İYUK), Articles 7, 11, 27.
- AYM, Arzu Mülayim and Others, 2017/25436, 21.07.2020, especially §§53-60 and the holding.