onsdag 13. februar 2019

No. 1472: Government lawyer writes to Borgarting Lagmannsrett and my comments on this to my lawyer!

No. 1472:
Government lawyer writes to Borgarting Lagmannsrett and my comments on this to my lawyer!

As written before, we have appealed the wrong sentence in our opinion from the Oslo District Court.

This is what government lawyer Elisabeth Sawkins Eikeland writes, photo.

Attorney General
Appeal to Oslo District Court

 Oslo, 11.02.2019 2018-0665 ESE / ESE

Case No: 18-104017TVI-OTIR / 06

Appeal party: Jan Kåre Christensen Krogstien 2 c 0672 OSLO

lawyer Knut Magne Howlid Gyldenløves gate 24 0260 OSLO

Defendant: State Department of Ministry of Local Government and Modernization Postbox 8112 Dep 0032 OSLO

Prosecutor: Government Attorney at Lawyer Elisabeth Sawkins Eikeland Postbox 8012 Dep 0030 OSLO
Attorney General

1 INTRODUCTION Reference is made to the Declaration of Appeal dated 21 January 2019 and the Borgarting Court of Appeal's letter of 21 January 2019 with a deadline for filing a response to an appeal by 11 February 2019. The case concerns the validity of the County Governor of Oslo and Akershus's two decisions on refusal of dispensation by plan and the Building Act § 19-2, respectively, for entry of a supporting wall and outbuilding 10.04.20018, and decision not to change 14.06.2018. The State believes that the district court's judgment is correct in its entirety and that the County Governor's decision is valid. The actual representation in the District Court's judgment (page 2-4) is not contested and, in the opinion of the state, can be unproven, cf. section 29-16, second paragraph, of the Dispute Act. The state cannot see that the appeal reveals new information that can lead to another result in the Court of Appeal.

2.1 Processing errors The State believes that it cannot be regarded as a procedural error in the District Court's treatment or the County Governor and / or the municipality's treatment that there has been no inspection. Both the district court, the county governor and the municipality have, through their assessments of the exemption applications, had access to comprehensive documentation that describes both the word and the image proof the property, applied measures, nearby terrain and neighborhoods. The state does not believe there is a basis for the argument that the case is not sufficiently informed by the fact that documents and witnesses have not been filed. The state reminds here that the plaintiff has had full opportunity to present the documentary and witness evidence he wishes for the district court, and that the witness Aubert who was summoned by the plaintiff first was waived by the plaintiff during the main hearing. The state has never opposed Aubert's testimony. My comment during the main hearing on what knowledge Aubert had or not was intended only as an objection to the accusing party's statement of the party, and that the court, in the view of the state, could not base its explanation on what Aubert knew and not, or what Aubert had given guidance if, especially in the light of more timely evidence that expressed the opposite and that he had dropped this witness earlier in the day. Mtp. The more timely evidence is shown, among other things, to the Plan and Building Administration's letter of 30 January 2017 (Appendix 5 in the Government's reply), which states that the relevant case officer has not stated that a wall of this size placed in a regulated road surface is exempt from the obligation to apply. and that it does not appear from framework permits etc. that Aubert has been the case officer on the case all the way that the plaintiff stated in the party's explanation. The State can in no way in any way see that there are procedural errors in the District Court's ruling that can lead to revocation, and also no procedural errors in the County Governor's decision that can lead to invalidity.
2.2 Violation of the supervisory duty The State disputes that there has been a breach of the supervisory duty pursuant to fvl. § 11 in connection with the listing of the support wall, and in its entirety shows to the District Court's assessment on page 11 (and from the County Governor's decision, page 10 of the judgment).

Attorney General

The court has fully tested whether the cumulative conditions for exemption pursuant to section 19-2 have been fulfilled, so that any procedural errors will in any case not affect whether the conditions for exemption are fulfilled or not, cf. § 41.
2.3 The support wall The state in its entirety refers to the district court's assessment in the judgment on pages 10-11, and maintains that the conditions for exemption pursuant to section 19-2 are not fulfilled. New in the appeal is that the appellant states that it is wrong to interpret the zoning plan S-4220 (the small house plan), section 6.5 second paragraph so that it is the whole plot's direction of fall that should be used as a basis for assessing how high terrain interventions that, exceptionally, can be allowed, ie. If section 6.5 second paragraph letter a, b or c is applicable, see the judgment on page 9. The appellant party has not legally justified why the County Governor and the District Court's interpretation is incorrect. The State believes that the County Governor and District Court's assessment is correct. The wording in section 6.5, second paragraph, is:
"The following exceptions are allowed:
a. On flat and gently sloping plots, the total height of support walls, fillings and / or cuts in buildings shall be a maximum of 0.5 meters.
b. For sloping plots with fall 1: 6 - 1: 3, height of support walls, fillings and / or cuts overall not exceeding 1 meter.
c. For steep plots with terrain falls more than 1: 3, the height of retaining walls, fillings and / or cuts should not exceed 1.5 meters overall.
The wording itself indicates that it is the plot as a whole that is to be considered. It also follows from the guide to the small house plan page 22 that:
"The slope of the plot is measured as the average fall on the property. On properties with large terrain variations, one can calculate the slope within the part of the plot where the measure is placed, but not for very limited parts of the plot. ”
The site of the appellant does not have large terrain variations, and the slope shall in any case not be calculated on the basis of very limiting parts of the plot - as stated here only between the house and the road. The District Court's assessment is correct. The state is also briefly noted that the consent of the neighbors is not relevant in the exemption assessment.

2.4 The Booth The state in its entirety refers to the district court's assessment in the judgment on pages 12-15, and maintains that the conditions for exemption pursuant to section 19-2 are not fulfilled. The state cannot see that the aforementioned conditions in the appeal - that one has to go through several rooms to put things down in the booth on the lower floor, or that the appellant needs more area for storage space - may indicate another assessment according to pbl. § 19-2. The state is also briefly noted that the consent of the neighbors is not relevant in the exemption assessment.

Attorney General

2.5 Submissions on discrimination etc. The state shows in its entirety to the district court's judgment in the judgment on page 11. The state maintains that the authority abuse teaching is not applicable since the court has full competence to test whether the two cumulative conditions for exemption are fulfilled, cf. 1983 pp. 1290, SOM-2017-1231, SOM-2014-3266. In all cases, there is no unlawful discrimination and the decisions are not grossly unreasonable.

3 ANKEN SHOULD BE SUCCESSED FORWARD JF. TVL. § 29-13 OTHER MEMBERS The State believes it is clear that the appeal will not take place, and that it should therefore be denied in accordance with section 29-13, second paragraph, of the Dispute Act. The state shows, among other things, the statements made by the appeal committee's majority in case HR-2015-987-U section 15-16, and most recently Borgarting lawyer's decision LB-2018133876. These cases did indeed apply to immigration law, but the general statements have the transfer value. The state believes that the district court has taken the correct legal starting points for the assessment of the case in the judgment on page 7-8. 10-11 and 12-15. The fact of the matter is not disputed. The property and the relevant measures, the booth and the support wall, as well as the surrounding terrain are well described in the documents brought before the district court. The state cannot see that neither inspection nor witnessing from Aubert will be able to change the subsumption and the specific outcome of the case.

4 OTHER MATTERS If the case is brought forward, the state will carry the same documentary evidence as for the district court. The state believes it is sufficient that one day be set aside for the appeal. Case officer Lise Marie Sundsbø from the County Governor of Oslo and Akershus will make the party representative on the case, cf. section 24-6 second paragraph.

5 DEPOSIT 1. The appeal is rejected. 2. The State by the Ministry of Local Government and Modernization is awarded legal costs for both agencies.


Elisabeth Sawkins Eikeland lawyer
(quote end.)

This I write to my lawyer who shows my view.

To Knut Howlid! Oslo 11 / 2-2019

Nice you are good in Bergen. Responds to emails within a few days.

Read over, but she "jumps" over the most important thing about the wall is that we have been given oral approval to build on top of old wall.
The quotation she mentions is not relevant as this has never been mentioned before than now in retrospect. Can't make provisions into the case that hasn't been mentioned before, the only thing that is said to be that it is not mandatory to build on top of the old wall and what we have built is no higher than what others are. Maser about the same up and up again that small house buildings apply to us, this is boiling soup on a nail argument.

And the booth is set up in good faith and after having gone through so many cases here in Oslo. Then it is "normal" practice that so little exceedance as what we have on the utilization rate of the plot, then get an exemption. Here they have a practice for us, than for others here in Oslo, just to set an example.

Seems what she came up with arguing was very thin, only paragraphs that one must ignore when I / we have been verbally promised to build masonry against the road as it was required due to strong slope down the road. The fact that there are only benefits to what we have built means that the only sensible and correct thing in this case is that the County Governor's decision is invalid. So we can keep wall, staircase and storage standing as it stands today.

Aubert hasn't been on the case all the time, she was taken off after she gave us permission to build wall. As far as I know, she was was our case officer in 2013 when we received oral approval.

Your bill was exquisite. To the Government Attorney it seemed partly confusing when she argued both to follow paragraphs and that Aubert had not intended what she had said when she was not on the case anymore.

Jan K

Hi again Knut! 13 / 2-2019

Have read through the Government Attorney and here is something that you can possibly include in your reply.

1.) In many ways, the actual case between us and PBE in Oslo is "storm in a water glass" in my opinion. Since we have built everything in good faith and the small amount that is above the utilization rate on the site is minimal. If one goes through similar cases here in Oslo, then one finds that dispensation is "always" given in similar cases as true that one seeks in a good and right way that we have done. The "normal" is to get exemption in such cases as we have done, not the way we are met. At least matters that are like our 5 years back in time.

2.) The Government Attorney reads in paragraphs again in the case and how important it is to follow the housing regulations.

This is not relevant for this case as we have been guided out on the basis of building on an old housing estate where it was not required to build a wall on an old wall. Then our DOCTOR COMPLETE GUIDED US TO !!!!!

Once that has been done, a wall built on old wall that fits perfectly into the terrain. On our own property, it becomes a powerful exaggeration to impose that we should demolish this wall that is built at the same height with other walls here at Hellerudtoppen. All walls largely follow the terrain, even are probably in the height of the Stormyrveien at also between 5 - 10 meters.
The reaction does not correspond to our so-called "illegality" which is nothing but following the guidance given.

3.) It has also been sought that one should place such emphasis on following paragraphs and rules, when our responsible applicants point out that in our living area it is not sought to build masonry here in 100 years.

This is what our responsible applicants are writing Ferdigattest Byggesak AS, Pb 9385 Grønland, 0135 Oslo:
"By the way, not all the walls in the area were established before the house plan became applicable. Several of the walls in the area appear to have been established after 2006. From the point of view of the case, we can not see that any cases have been registered in the Stormyrveien which concern explicit walls over the past 100 years. We assume that some walls are considered in sc. other buildings, but notes that it may nevertheless seem that the owner of the measure is right in saying that several of the walls have not been subject to a material assessment. "

4.) When it comes to the booth, it is also timely to remind that neighbor a few meters away in the road built booth etc. at the same time as us. Where they got an exemption to utilize the plot's utilization rate 54 times more than us. Then it is not just discrimination, but the deviation is so great in our disfavor as night and day. Such difference treatment is simply unheard of, unreasonable and a difference treatment that surpasses the vast majority.

This is what our responsible applicants are writing Ferdigattest Byggesak AS, Pb 9385 Grønland, 0135 Oslo:
"With respect. Continuous green areas then perceive the owner of PBE's argument, which has been applied a bit in excess. Again, reference is made to virtually all the sites in the immediate area where this green area is broken up with some form of terrain work - primarily the establishment of walls. All properties of the complaining neighbors end up on the road with what PBE refers to as an unnatural transition that breaks the green contiguous areas towards the road.

The owner of the measure is wondering that residents in the immediate area must have been granted an exemption for a listed booth (case 201316839 - Stormyrveien 9C). Whether or not there are major differences in this case and the present case, we are somewhat uncertain, but at least we note that here too there is talk of an illegal list and that in the case,% BYA was reported up to 60%. We also record that this site is covered by another regulation, without us being sure of how it affects the assessment criteria. We also assume that PBE has an overview of the fact that no corresponding exemptions have been granted with regard to. % BYA for similar measures in the scope of the Small House Plan. "

5.) The Government Attorney believes that the case is probably enlightened. This also becomes "rail argument."
There is no one who has been visiting here once, except for PBE here in Oslo on a hidden inspection where they took pictures to use against us (it is also out on the net to really get us). The whole thing is perceived as a struggle against us from the public agencies so that for an incomprehensible reason we should tear everything that is built. That really only has advantages and not disadvantages.

This is what our responsible applicants are writing Ferdigattest Byggesak AS, Pb 9385 Grønland, 0135 Oslo:
“In its decision on the custody of the PBE, PBE emphasized the outdoor living areas. The initiative owner experiences this argument to some extent to be contradictory then the agency in fm. booths emphasize the outdoor area a lot, while in fm. the improvement of the outdoor area associated with the wall does not add to this significant weight. We understand the agency with regard to that bail to some extent seizes area set aside for outdoor stays, cf. given permits for housing. We also understand that the agency has assumed that sloping terrain (up to 1: 3) is considered usable (outdoor living areas to the west if one does not establish a wall). Mht. allocated outdoor area, we will point out that due to changed provisions with regard to calculation of outdoor living area, the actual outdoor areas of the dwelling have actually increased in computational terms, cf. given permission for housing, even after the estab- lishment. Previously, PBE did not consider areas in sc. roof terrace to be "usable", while according to. changed provisions so they do it. Thus, requirements for outdoor areas are fulfilled regardless of whether the fine is established or not. Mht. the outdoor areas to the west we will once again point out that flat areas provide better opportunities for varied outdoor stay than sloping areas. On this occasion, it is requested that the municipality looks to the neighboring plots, and most plots down the Stormyrveien (where trapping of terrain is relatively widespread) in its complaint assessment. It seems obvious that it is not only the initiative owner who has had a desire to flatten the hilly terrain with a desire for a flat outdoor area. ”

6.) The Government Attorney writes:
"The actual representation in the District Court's judgment (page 2-4) is not contested and, in the view of the state, can be unproven, cf. Section 29-16, second paragraph, of the Dispute Act. The state cannot see that the appeal reveals new information that can lead to another result in the Court of Appeal. "

This is so wrong it can then remain that we have disputed then most? Not least all the paragraphs and rules that should be followed that only lead to confusion and that we have to tear down what is not for the sake of a single person or for the traffic passing by our house every day. Even the route bus that passes by has never made any objections to what has been built.
Why? Because the property is now far better than it was before the development. When tearing this goes against all common sense.

7.) The Government Attorney writes:
"In any case, there is no unreasonable discrimination and the decisions are not grossly unreasonable."

This is by mouth and measure what a must say is a lie according to my terms as others have received up to 54 times larger in percentages granted exemption than us. When saying that it is not "unreasonable discrimination and the decisions are not grossly unreasonable" is simply the "greatest" of the century as I have heard and read.

8.) If one goes through the attachments that have been sent and compares with our case, it is grossly unreasonable that we must tear everything down and have not received an exemption. When I read the verdict and the lawyer's arguments, they basically argue that they have never heard, believed or reflected on what we think is right and true in this matter.

9.) When our then case officer has guided us to build on the old wall, and she is then taken off the case. Then it becomes wrong to point out that we have not had the same case officer. We have never claimed that, but when we built the wall we were guided by Kaja Lange Aubert in advance. Here is what I write to Oslo District Court regarding this conversation:

“We moved in here in 2012. In 2013 we called down to our then case officer Kaja Lange Aubert. It was called down 2-3 times, to make sure we did the right thing.
It is not easy to reproduce this five years later, and when there were several phone calls it feels like one when it is five years later.
And, that the city of Oslo has not been interested in hearing our version at all, they had decided 3 - 4 years ago that we should get everything down.

What happened to the phone calls we had with our then supervisor Kaja Lange Aubert?

Do you remember remembering that we called down mid-May and August 2013? It is five years back in time, it is a long time ago and difficult to remember in detail every word as it was said, but in my memory she replied like this.
Then I asked about the following, we set up stairs and wanted to set up walls. Trapp I think we set up 2013, when before this we had had a rope that we threw ourselves down on in the Stormyrveien, and believe it or not, it is to this level the Oslo municipality has given us the order to return to that we should use a rope to throw us down on the road with. You do not believe it, but we had it before we built a staircase that the city of Oslo has ordered us to demolish, it can grasp it.

I asked what was needed to build a wall, to which I got the answer that if a wall was built there before, it was not mandatory to build one on top of it. This replied Kaja Lange Aubert.
I said yes, and then Kaja Lange answered Aubert that then it was NOT APPLICABLE WHEN IT WAS BUILT A WALL FROM BEFORE!

I further said that we foresee a wall of 1.5 meters and 1 meter fence.
This was not a problem she said, as others from before have a higher wall than you. She's going Not to mention that such a low wall, which was no higher than that of others, should be ignored as it was a wall from before. The wall that stood there made it impossible to retry again. In other words, it was "normal" on the Hellerudtoppen not to seek more than necessary.

In 2013, I even called an extra time, for the sake of safety and asked the same, and the same answers were given.
As long as there was a wall there before, we didn't have to search even though the wall was different. In other words, we got permission in advance of our construction of masonry, Oslo municipality breaks Norwegian law by contesting this. "

10.) After reading through countless cases here in Oslo where there is a dispensation. So, in fact, our case is one that stands "strongest"!
See Appendix.
Can't see that in our case we had a rope that we threw ourselves down the road before we built the stairs. That it should be demolished is senseless.
We had a dangerous slope where minor and other occasionally fell out towards the road before we built a wall. It is also much prettier and we have a flatter and better plot, that we should tear this up perceived meaningless.
Our house is built so that the 2 small booths that are in the house are inside several rooms and are not really stalls in that sense. They are too inaccessible and this has been approved by PBE, as it turns out afterwards that an external storage room is also required for that reason. But the booth we now have works perfectly and is perceived as much better to have than to have tarpaulin over things that are not preferable. That our booth we shall tear as we share with the rental apartment is senseless.

11.) This is not in her reply, but after thinking about the matter, it is perceived as being a little democratic and right both the judgment and the treatment we have received.
In reality, the judiciary and the public are, in some cases, so well-timed with us, and they protect each other that it is not understandable and understandable.
Where the County Governor protects PBE here in Oslo.
Again, the Civil Ombudsman protects the County Governor and PBE here in Oslo.
Taking a case to court, the justice system defends / protects absolutely everything and everyone, even here in our case, they write false and distort the sentence several places. It is not a fair treatment we have received so far in our opinion and opinion.
A decision like PBE is like a "locomotive" that runs through everywhere, even into the courtroom as here. Although it is obvious that it has not been and remains in it. Why this goes on, I believe that lack of empathy and thoroughness is essential. After all, they have not been on a visit here on our property if I have asked both PBE here in Oslo, the Civil Ombudsman, County Council and the court.

12.) The reason why we built is not included in the judgment either, that we did this in good faith after the PBE guidance and that it was allowed to build bids of less than 15 sqm without applying for it. Something we have done both at Karmøy and Mortensrud here in Oslo. As well as stairs were necessary and all properties with access down into the Stormyrveien have either stairs or access to this road as it is the main road here in the area.

13.) Hope you realize that if we get a fair treatment in Borgarting Lagmannsrett, then we win guaranteed. But if treatment is as bad as in Oslo District Court, then we lose.

I feel we are far better equipped now than in Oslo District Court. That is why we are guaranteed to win if the judges will investigate the matter and see the case not only on the part of the authority. But also from our side, this is what they have not been willing to do yet. It has something to do with the system I mean, that it does not work unfortunately after having been through any court cases. But we are trying to win this case if we have been met with a lot of injustice. It never solves anything to just focus on what is not right done to us etc.

14.) Will start again finding new cases next week where dispensation is given. It has been good with a little "holiday" from this case.

Jan Kåre Christensen

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