Landmark Decisions

Decisions by two courts come on top of a courageous Supreme Court ruling concerning illegal residential building next to Ein Hemed National Park, a few kilometers west of Jerusalem.

The shopping area adjacent to Yarkonim Junction will no longer be busy or packed with people. The Supreme Court has decided to reject the appeal of the owners of businesses at the site, located between Petah Tikva and Hod Hasharon, and to uphold the decision by the Tel Aviv District Court ordering them to shut them down.

The decisions by the two courts comes on top of the courageous ruling handed down by the Supreme Court concerning illegal residential building next to Ein Hemed National Park, a few kilometers west of Jerusalem. The judgments may help curb an ongoing process of construction that is in breach of the planning and building laws. The decisions are both brave and tough, because they entail the loss of hundreds of jobs and the evacuation of private homes.

About three months ago, the Supreme Court ruled that the purchasers of seven two-story homes at Ein Hemed will no longer be able to continue living in them and will have to rent them out as holiday apartments. The court ruled that because the land on which the homes stand is defined as a "natural resource," only hotels or the like may be built on it.

The Yarkonim Junction case involves large stores of a number of countrywide chains: Home Center, Super Shuk and Hyper Toy. The District Court ruled four years ago that they had to be shut down (an order to cease the use of land), as they were commercial structures standing on land that was intended for agricultural use. The stores filed request after request to delay the execution of the closure orders and the courts acceded. In the last instance, the local affairs court in Petah Tikva ruled in January of this year that the stores could continue to operate until September. The state appealed and the Supreme Court ordered that the orders to desist from the use of land be implemented.

The judgment shows just how exhausting and Sisyphean the struggle of the planning authorities can be when they finally decide to prevent the use of land contrary to its lawful designation. On four separate occasions, the Planning and Building Committee of the Central District rejected requests of the stores to go on operating, but the courts granted the shops further extensions.

It was plain to the Tel Aviv District Court that this was a case of unlawful activity that the authorities had been unsuccessful in dealing with: "This is not a case of business that operated legally - or of businesses that operated illegally - while the authorities looked the other way, but of businesses that are operating without a permit contrary to the authorities," the court wrote.

The question of the mass dismissal of staff that would accompany the closure of the businesses was a major argument that was raised to justify the continued operation of the commercial center at the junction. The Petah Tikva court accepted this argument, but the District Court agreed with the position put forward by the planning committee, namely that "acceptance of this argument ... would undermine all the activity of the planning institutions: First one opens a huge business illegally, and then one asks for the permits to operate it on the grounds that its closure will cause unemployment."

The decisions of both the District Court and the Supreme Court in the matter of Ein Hemed, an area of special landscape importance, are not only of critical importance for upholding the planning and building laws, they are also vital for the protection of the environment. Prevention of residential construction on land that is designated for farming or tourism use preserves Israel's reserve of open areas. Yarkonim Junction has no special landscape value, but it is intended to be part of a large park, hence its public importance.

The judges in both cases appear to have been well aware of the environmental implications of their decisions. The Tel Aviv court declared that the state has an extremely important interest in preserving agricultural land and open areas precisely in the crowded central region.

The Supreme Court showed understanding for the distress of the home owners at Ein Hemed, but added, "We cannot accept the disdain for the planning and building laws, disdain that has become almost a norm in our society. Protection of the environment and preservation of landscape assets that are public property are important values that need to be respected. The planning laws are part of the tools created by the legislators to ensure that those values are protected. Therefore, and in the light of the power of the interests on the other side, the planning institutions are obligated to fulfill their duty and act as a brake against violations of the law."