Legal information

Article introduction: The Planning Bureau issued a "Notice of Order to Stop Work" on Quanqiqun's already completed building. After the house involved was demolished, the Planning Bureau gave compensation to other villagers, but refused to compensate the applicant Quanqiqun. Why is this?

Part One: Case Introduction

The applicant, Quan Qiqun, built "two steel-structured sheds" on the original house and surrounding cultivated land in November 2012 and May 2013. On October 8, 2013, the respondent Daye City Planning and Construction Bureau issued a "Notice of Order to Stop Work" and illegally demolished the building. "Order to stop work" on already built buildings? What's going on? Let's look at the specifics of this case.

Part 2: Case Analysis

Points of Dispute 1. Is it okay to “order a halt” to a building that has already been built?

(1) The reason why the respondent made the decision to “order the suspension of work” in this case is:

According to Article 40 of the Urban and Rural Planning Law, when constructing buildings, structures, roads, pipelines and other projects within city or town planning areas, the construction unit or individual shall apply for a construction project planning license from the urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region or municipality directly under the Central Government. When applying for a construction project planning license, you must submit relevant certification documents for land use, construction project design plans and other materials. For construction projects that require the construction unit to prepare a detailed constructive plan, a detailed constructive plan must also be submitted. For those that meet the regulatory detailed planning and planning conditions, the urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region, or municipality directly under the Central Government shall issue a construction project planning permit. The urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region, or municipality directly under the Central Government shall publish the approved detailed construction plan and the general plan of the construction project design plan in accordance with the law. In this case, since the two steel-structured sheds built by the applicant did not receive planning approval, it was an act of "building before approval." Therefore, it is legal to issue a "Notice of Order to Stop Work".

(2) The applicant believes that:

The "Notice of Order to Stop Work" is a decision to order a building to stop construction if it violates the relevant provisions of the Urban and Rural Planning Law and constructs the building without authorization. However, since the applicant has no construction activities, it is unbelievable to order him to stop the construction. The applicant is a villager from Xiaquanwan, Xinmei Village, Dongyue Road Sub-district Office, Daye City. The area where the building involved is located has now been included in the urban planning scope of Daye City.

Focus of controversy 2. Is the forced demolition by the Daye City Planning Bureau legal?

(1) Daye City Planning Bureau believes that:

When the building involved was newly built, repeated attempts to stop it failed, and only in May 2013 was a "notice to stop work" issued to it. Since the applicant built the building without approval, the building is an illegal building, and it is reasonable and legal to demolish the illegal building.

(2) The applicant believes that the administrative action taken by the Daye City Planning Bureau is illegal

The applicant's authorized agents, Lu Jianan and Wang Qingfeng, believed that the administrative actions taken by the Planning Bureau were clearly illegal without performing any defense and notification procedures in accordance with the law. The house involved in the case has been demolished, and the planning bureau of the respondent gave compensation to other villagers, but refused to compensate the applicant Quan Qiqun. This kind of law enforcement behavior is obviously unfair!

Part Three: Legal Opinion of the Huangshi Municipal People’s Government Administrative Reconsideration Committee:

1. The "Notice of Order to Suspension of Work" involved in the case is a temporary control act carried out by the respondent on citizens' property in accordance with the law in order to stop illegal activities, prevent evidence damage, avoid danger, control the expansion of danger, etc. during the administrative management process. This behavior falls within the category of “other administrative coercive measures” stipulated in Article 9 of the Administrative Coercion Law. Therefore, the respondent should investigate the facts involved in the case in accordance with the law before taking administrative compulsory measures involved. And perform the following obligations in accordance with Article 18 of the Administrative Enforcement Law.

(1) Before implementation, it must be reported to the person in charge of the administrative agency and approved.

(2) Implemented by more than two administrative law enforcement personnel.

(3) Show law enforcement ID.

(4) Notify the parties to be present.

(5) Inform the parties on the spot of the reasons and basis for taking administrative compulsory measures, as well as the rights and remedies enjoyed by the parties.

(6) Hear the parties’ statements and defenses.

(7) Make on-site transcripts.

(8) The on-site transcript shall be signed or stamped by the parties and administrative law enforcement personnel. If the party refuses, the situation shall be noted in the transcript.

(9) If the party concerned is not present, witnesses shall be invited to the scene, and the witnesses and administrative law enforcement personnel shall sign or seal the on-site transcript.

(10) Procedures prescribed by other laws and regulations.

2. The Huangshi Municipal People’s Government Administrative Reconsideration Committee believes that:

(1) The respondent, Daye City Planning Bureau, did not provide the materials involved in the case for approval within the statutory time limit for producing evidence, nor could it provide evidence that it had listened to the parties’ statements and defenses. Therefore, the respondent Planning Bureau should bear the legal responsibility for failing to provide evidence.

(2) In the "Investigation of Houses in Quanqiquan Group 5, Xinmei Village, Xiaquanwan, Dongyue Street Office" issued by the Planning and Construction Branch of the Dongyue Subdistrict Office, the entrusted agency, the date of the investigation was not indicated.

(3) There is only one signature of a law enforcement officer, which does not meet legal procedural requirements.

(4) It cannot be proven that the respondent has fulfilled its procedural obligation to produce on-site transcripts.

(5) In the conclusion of the investigation, the respondent admitted that the two steel structures involved in the case were constructed by the applicant in November 2012 and May 2013. However, the specific time recorded in the "Notice of Order to Stop Work" involved in the case was October 8, 2013. This is an unclear fact.

(6) The facts found in the "Notice of Order to Suspension of Work" issued by the respondent are unclear and the procedures are illegal. Therefore, in accordance with the provisions of items 1 and 3 of Article 28, Paragraph 1 (3) of the "Administrative Reconsideration Law of the People's Republic of China", the "Notice of Order of Work Suspension" issued by the respondent on October 8, 2013 is revoked.

Yingting reminds you:

If your house is deemed to be an illegal construction, please first find out whether your house is an illegal construction. After encountering forced demolition, or within 60 days of receiving specific administrative actions such as expropriation decisions and expropriation compensation decisions, administrative reconsideration is filed, and administrative litigation is filed within 6 months. Don’t miss the statute of limitations through petitions, reports, etc.

Each case has a story. If you encounter similar problems, you can send a private message for one-on-one consultation.

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Editor/Original Author: Yingting Demolition Lawyers Group