Calcalist, Shlomit Tzur, 18.11.2020 

The state does not give up and appeals the decision of the Magistrate's Court to postpone for two years the demolition of 3.5 illegal floors out of 10 floors in a residential building in Kiryat Malachi.

In the background, at the beginning of October , the Ashkelon Magistrate's Court accepted the request of the residents of the "Heart of the Park" project in Kiryat Malachi to postpone for two years the implementation of the demolition orders issued to the 3.5 illegal out of 10 floors of the populated building.

The goal was to allow tenants time to prepare for construction and prevent demolition that they claimed would jeopardize the stability of the building. The orders were supposed to be executed in June 2020, when their execution was postponed on bail until the end of 2022.

Judge Ido Kafkafi ruled at the time that the state ignored the consequences of the demolition and noted that "the public interest in enforcing planning and construction laws clashed with the rocks of reality." The decision was given only five months after the Supreme Court rejected the request of contractor YS Shepetz Vaknin who built the building to extend the effective date of the orders.

Now, the state as aforesaid is appealing the decision that it claims will perpetuate the construction irregularities at the site, while the construction offender will be hired out for committing the offenses. The state further claims in its appeal to the Be'er Sheva District Court that the tenants who submitted the request for an extension of the demolition orders did so in "bad faith" because they knew about the offenses and inhabited the building after demolition orders were issued for the illegal floors. The State also claims in the appeal that the chances of training the construction anomalies are slim, and therefore there is no reason to extend the dates of implementation of demolition orders. The state claims that the execution of the orders is possible and does not endanger the security of the tenants, and the public interest in the execution of the orders outweighs the private interest of the tenants and the inconvenience that will be caused to them.

"In all fairness, difficulty in carrying out demolition or complexity of demolition cannot justify the perpetuation of the offenses in the land," the appeal noted. "A sinner did not benefit from making the demolition complex. The opposite is true. The deterrence of committing offenses will be achieved if the offender knows when he will be required to remove his omissions, however complex they may be. As far as the consequences for the tenants' lives are concerned. "The decision is made to perpetuate the anomalies. The public interest in carrying out the demolition outweighs all the difficulty that will be left to the tenants during the execution of the orders. They undertook to allow the demolition to take place after the building is inhabited."

The affair began in 1999, when YS Shefetz Vaknin purchased the land in a tender from the Israel Land Authority and erected three buildings instead of two, based on illegal permits it received from the Kiryat Malachi Local Planning and Construction Committee. In one of the buildings, she built 10 floors instead of the 6.5 floors specified in the permit. At the end of a legal proceeding, the Be'er Sheva District Court ruled that the 6.5 floors built in accordance with the permit and the apartments in them sold to the buyers - will be inhabited, but the 3.5 illegal floors and the 18 apartments in them will be sealed and an order issued to demolish them. Shefetz and management company Shimon Vaknin were convicted and fined NIS 6 million. After various courts rejected the company's request for non-compliance with the orders, the company filed an appeal to the Supreme Court, which last April rejected the appeal on the grounds that it was not possible to train the upper floors as the company claims and therefore the demolition should be carried out by June 2020.

The occupants of the building also appealed to the court to postpone the execution of the demolition orders, and to allow them time to prepare the step floors. This is on the grounds that the demolition of the upper floors of the building will endanger the stability of the building and will require evictions from the apartments for a year. Despite the state's opposition, Judge Kafkafi accepted the tenants' request and ordered the postponement of the demolition orders for two years to October 2022. This was on the grounds of "practical difficulty" in carrying out the complex demolition, and the state ignored the expected harm to families living in the building. "The important public interest of enforcing planning and building laws conflicts with the rocks of reality in the circumstances of the case," Kafkafi noted in the ruling, giving tenants time to try and legalize building anomalies and even suggest that the apartments on the steps be allocated for public housing stock.

"Planning and construction offenses - violating the rule of law"

The Ministry of Justice, through the Department of Guidance Prosecutors, has filed an appeal against the decision in the Be'er Sheva District Court, arguing that violations of the Planning and Building Law are serious offenses that violate the rule of law and public order. The state mentioned that the Supreme Court has repeatedly ruled in a series of judgments that the courts must combat the ugly phenomenon of illegal construction and that extensions to the execution of orders will be given sparingly. The prosecution further claimed that the chances of legalizing the illegal construction of the project in Kiryat Malachi are slim, and therefore the date of execution of the demolition orders should not be postponed.

The state further claimed that the tenants' opposition to the execution of the demolition order was tainted with bad faith, since the tenants were aware before the occupation of the possibility of demolishing the upper 3.5 floors built without a permit. They even signed an undertaking that they would allow the demolition of the illegal construction even after the population. Moreover, most of the apartments in the building were inhabited after and despite a restraining order issued by the district court to allow for occupancy. The state further claimed that to date no plans have been submitted to train the anomalies, and there is no planning horizon for their training, and after many years of inaction on the part of the tenants, they have now turned to postponing the demolition orders following their commitment under an agreement to receive monetary compensation from Shefetz. If the orders are revoked and the construction is qualified.

In the appeal, the state claims that the Magistrate's Court's decision deviates from the Supreme Court's ruling that "the deviation in this case is difficult to digest, and the illegality involved in this construction is clear and unequivocal. In these circumstances, revoking building permits and demolishing the illegal structure are necessary ". He added that "it should be remembered that there was room to demolish the entire third building, but since the tenants had set a fait accompli and acted to populate the building, they forced the planning authorities through the court to approve the 6.5 lower floors. And there is no room for further relief in order to qualify construction offenses in violation of an illegal permit in the first place. "

The appeal was filed through Adv. Segev Peltz, a prosecutor on behalf of the Department of Supervision of Certified Prosecutors by the Attorney General.