fredag 15. mars 2019

No. 1492: Our case rejected Borgarting Court of Appeal, and we will not appeal to the Norwegian Supreme Court!

No. 1492:
Our case rejected Borgarting Court of Appeal, and we will not appeal to the Norwegian Supreme Court!

Here in Eastern Norway there was one who cut the neighbor's outbuildings in two. It is at the level that the public agency is against us, we must be taken.
Others even in our neighborhood receive exemption during the same construction period as us 54 times more than us. Here there is so much discrimination that one has to call the public agency for criminals.

Unfortunately, our case was rejected, totally incomprehensible and it just shows that we have been and have been treated unfairly. Here is the reasoning and what I think about this.


Delivered: 08.03.2019

Case number: 19-024795ASD-BORG / 02

Judge Agnar A. Nilsen jr.
Lawyer Kjersti Buun Nygaard
Lawyer Thomas Chr. Poulsen

Appeal party Jan Kåre Christensen
Lawyer Knut Magne Howlid

Anke Counterparty
The State / Ministry of Local Government and Modernization Attorney Elisabeth Sawkins Eikeland

The case concerns the validity of refusal of an application for exemption pursuant to section 19-2 of the Planning and Building Act.

Berit and Jan Kåre Christensen erected an 11 meter long and approx. 1.85 meter high retaining wall on their property in Krokstien 2C in Oslo. A little before this, a gear shed of approx. 12 sqm.

After first rejecting a defective application in 2014, Oslo municipality received the Planning and Building Administration on July 1, 2016, an application for entry of the support wall and the fine. In the case of the booth, an application was made for an exemption from the provisions on the utilization rate in the house plan and the distance provisions in section 29 of the Road Act. terrain interventions, and the regulatory purpose of traffic area road. The municipality came to the conclusion that the statutory conditions for granting an exemption were not fulfilled, cf. the decision of 14 October and 20 October 2016.

The County Governor of Oslo and Akershus declined a complaint against the decisions, cf. the decision of 10 April 2018. Nor did the complaint to the Civilian Ombudsman lead, cf. letter May 30, 2018. The County Governor declined applications for reorganization on June 14, 2018.

Jan Kåre Christensen filed a lawsuit against the state w / the Ministry of Local Government and Modernization, claiming that the county governor's decision of 10 April 2018 was invalid and that Christensen had to keep the wall, staircase and storage room as it is today.

Oslo District Court passed judgment on December 21, 2018 with such a ruling:

1. The State at the Ministry of Local Government and Modernization shall be acquitted.

2. Jan Kåre Christensen is sentenced to pay 40 600 - forty thousand six hundred - in compensation for legal costs to the State by the Ministry of Local Government and Modernization. The payment deadline is two to two weeks from the announcement of the judgment.

Jan Kåre Christensen has declared an appeal against the judgment. The appeal concerns the district court's evidence assessment, legal application and case processing. The State Department of Local Government and Modernization has objected and believes that the District Court's judgment is correct in the result and that no procedural errors have been committed.

The appellant was notified by the court's letter of 15 February 2019 pursuant to section 29-13, fourth paragraph of the Dispute Act, that the court was considering refusing the appeal. The Appellant has responded to the notification by Proceedings March 1, 2019.

The Court of Appeal finds that the conditions for refusing the appeal pursuant to the Dispute Act § 29-13, second paragraph, are fulfilled, and that the appeal should be refused. There is no prospect that an appeal will result in another result.

The Declaration of Appeal states that the case has not been adequately informed by the fact that documents and witnesses have not been conducted, at the same time as no bodies have carried out inspections. Christensen applied for preliminary guidance in the City of Oslo on two occasions before the support wall was erected, and he believes that he was accepted for the entry of the wall without having to seek prior permission. It is stated that there is a service error with regard to the guidance / advice. It was wrong of the district court not to emphasize that Christensen had been in good faith with regard to the duty to apply.

For the Court of Appeal, a new document is presented from the neighbors in Krokstien 2 a, b and d approving the support wall and the booth. It is also a new fact that the booth on the lower floor of the dwelling is impractical.

Furthermore, it is stated that it was wrong of the district court to take as a basis what the extent of terrain interventions that can be allowed, that the deviation is proportionally significant with respect to the height of the wall, and the error of the district court to assume that the entry was an intervention that is in direct contact conflict with the conservation of existing terrain.

It is stated that the formal basic conditions for exemption are fulfilled and that it is, in fact and legally, a basis for dispensation, and that in this case it must be possible to give room for the use of exemption.

It is also stated that it was wrong of the district court not to emphasize the differential treatment that Christensen believes has taken place in his favor in relation to other properties in Oslo.

The Court of Appeal agrees with the State that it is not wrong with the district court, county governor or commander Unens treatment that there has been no inspection in this case. It is assumed that all agencies have had extensive documentation describing both the word and the pictures the property, applied measures, nearby terrain and neighborhoods.

Nor is it a mistake that case officer Aubert was not taken as a witness. The witness was dropped by Christensen during the main hearing. What applies to the allegation of breach of the supervisory duty pursuant to section 11 of the Public Administration Act is referred to the municipality's letter of 30 January 2017:

"According to the case officer referred to, she must not have stated that a wall that is placed in a regulated road area, on the order of magnitude listed, is exempt from the obligation to apply. On the other hand, she may have stated that remediation / reversal of the original wall along the road would not be subject to application. This wall, however, was a low brick wall, partly covered with green, and this cannot therefore be compared with applied measures. "

And the Court of Appeal can endorse the District Court's assessment on this point:

"Nor can the court see that the telephonic guidance provided by the municipality's case officer can lead to the decision being invalid. The county governor's remarks on this statement are reproduced above, and the court accepts these. It is added that, in the view of the court, the owner of the measure cannot be considered to have been in good faith with regard to the obligation to apply. Oral guidance by telephone, with the sources of error and notoriety deficiencies this naturally entails, does not set aside regulatory provisions and does not give the plaintiff a legal claim for exemption, when - as here - it is necessary for the measure to be legal.

It appears to the Court of Appeal that the administration and the district court have had a fully satisfactory basis for assessing whether the legal conditions for dispensing have been fulfilled.

The Court of Appeal agrees with the various bodies that have dealt with the case, that the conditions for dispensation pursuant to section 19-2 of the Planning and Building Act are not fulfilled. It is not an incorrect understanding of regulation plan S-4-220 (the small house plan) § 6.5 second paragraph that the entire landslide's direction of fall shall be used as a basis for assessing how high terrain interventions may, exceptionally, be permitted, cf. the wording of the provision. Furthermore, reference is made to what the state has cited from on page 22 in the guide to the house.

As regards the fine, the Court of Appeal may conclude the following assessments of the District Court:

"According to the County Governor's assessment, the advantage of dispensing the fine was not clearly greater than the disadvantages. One of the two cumulative conditions pursuant to section 19-2, second paragraph, was thus not fulfilled.

The court agrees with this and can, in essence, give its consent to the County Governor's assessment. The court does not see that the legal and factual premisses of the decision or the sub-provision are wrong.

The Court notes that the requested fine will obviously provide more concrete benefits to the promoter, including more storage space and staircase access. Nor can the court see that the booth is a significant shyness for neighbors or others. Furthermore, it will incur a financial loss if the fine is to be removed. However, these are conditions of limited weight.

Contrary to the relevant drawbacks, which are exceeding the maximum allowed BYA, the principle that any changes should be made through changes to plans and not through exemptions, possible precedent effects and enforcement considerations, it is clear in court's view that the benefits are not clearly greater than the disadvantages . "

What is now stated that one has to go through several rooms to put things off in the bottom floor and that Christensen needs more space for storage space, does not indicate another outcome.

The fact that neighbors have given consent to the support wall / booth is not relevant in the dispensation assessment.

It cannot be doubtful that the two cumulative conditions of the Planning and Building Act section 19-2 second paragraph in order to be able to use the free administrative discretion pursuant to the first paragraph ("cancels"), provide guidance on a law enforcement practice which the courts have full competence to review. . When the legal conditions for granting an exemption are not fulfilled, Christensen can also not win with a statement about unlawful discrimination / abuse of authority. The things Christensen has invoked can otherwise not be seen as suitable for doubting that the jus has been used correctly in this case.

The state has in the anchor response laid claim on legal costs. The requirement is accepted, cf. the main rule in the Dispute Act § 20-2 first and second paragraphs. The amount is set at a discretion of NOK 6,000.

The decision is unanimous.
(quote end.)

Here are my views on this if we could have appealed this further. Something we were not allowed to do. A regular word of justice again.

Reasons to appeal to the Supreme Court.

1.) These phone calls between me and Kaja Aubert Lange will downplay them and believe they have no value. This will be completely wrong.
No wall had ever been built n these phone calls, where she guided me and said clearly that it was not mandatory for us to build this wall on top of old wall. That would have been a good 1.5 meters with a fence of 1 meter on top there as our wall would not be higher than its neighbors who have walls of over 2 meters with a fence of 1 meter on top of it.

2.) This also confirmed indirectly by our responsible applicants Ferdigattest AS, who writes this in our application to PBE here in 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 cannot see that any cases have been registered in the Stormyrveien which concern explicit walls over the past 100 years. ”

If one goes in and reads on PBE homepages here in Oslo, it looks like this is right. No one has applied for walls here until almost 2016 when it seems that PBE had a "rassia" here and approved "everything". Apart from what we have built.
The small house plan was supposedly established in 2006, but never communicated to us that it was here at Hellerudtoppen. Then this is also a service error not to inform about this when we called and talked to them (Kaja Aubert Lange, our then case officer) several times before construction.

3.) Reads through the legislation on exemption. So it clearly shows that dispensation should be given if it is positive for the environment, security etc.
With us before we built the wall, the filling mass ran out towards the road, now it does not. Only the little thing here shows that PBE violates Norwegian law and the intention of what the law really says.

This says the Act: "When dispensing from the Act and regulations to the Act, special emphasis shall be placed on the consequences of the exemption for health, environment, safety and accessibility."

Here it is quite obvious that in our case it is advisable to grant dispensation, then one is in harmony with the law, something one is not today with the harsh and unnecessary square treatment of us.

4.) It is PBE guidance that has created problems.

And what is "the problem" is reinforced by the fact that one does not want to get in touch in any area or add "gods" that should not be difficult in our case. Since it is only benefits, in fact, not a disadvantage of what we have built. They obviously break Norwegian law.

Violation of the duty to provide guidance after fvl. § 11

5.) Our neighbor on the same site has also applied for PBE for exemption as you wall is actually higher than ours, then with the fence.

The actual blocks with masonry and fence on top are also 1.3 meters + fence of 1 meter. There is just one waiting for some additional information where it is clear that PBE wants to meet our neighbor. Read about the case yourself:

Building case 201011373

6.) Includes as I have described the telephone conversation between me and Kaja Aubert Lange, and that PBE here in Oslo has violated Norwegian law.

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, to grasp the one who can.

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.

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, the Oslo municipality breaks Norwegian law by asking tride this.

7.) When can the dispensation be granted?

The municipality's access to granting exemptions is limited. It is required that the considerations behind the provision to which it is dispensed are not substantially disregarded. In addition, an interest weighing must be made, where the benefits of the measure must be assessed against the disadvantages. There must be a clear predominance of considerations that speak for exemption. This means that it will normally not be possible to grant an exemption if the considerations behind the provision for which an exemption is sought continue to apply with strength.
The assessment of whether the statutory conditions for being able to dispense are a law enforcement practice that can be reviewed by the courts. The Public Administration Act's rule on emphasizing the municipal self-government will thus only be taken into account when weighing the interest if an exemption is to be granted when the formal conditions of the Act for granting an exemption are fulfilled. It will apply in the same way in dealing with complaints and judicial control.
(quote end).

Here is clearly the following:

1.) It is required that the considerations behind the dispensation from which it is exempt are not materially disregarded.

Answer. In our case, nothing is significantly neglected, on the contrary, living environment and everything is much better.

2.) an exemption is sought from which still applies with strength.

Answer. We have built a booth that only "bounces" the border with a few sqm2 on a plot of more than 1500 sqm2. The wall is actually lower than its neighbor across the other side. It is not something that will have a negative effect on giving us dispensation, we are really only left with positive things.

8.) We have received a clear rejection from Borgarting Lagmannsrett, why?

It is angled and fabricated only with the aim of hitting us. Here they have jumped belly over so many facts in the case that it appears to be almost on the verge of being written with an overly subjective purpose of defending PBE here in Oslo that should not be walked in the seams in some areas.
Everything that can be used against us is used. What can speak to our advantage is completely proven omitted. In my opinion, the rejection from Borgarting Lagmannsrett is not held or credible. It is angled too negatively against us.

9.) The Court of Appeal finds that the conditions for refusing the appeal pursuant to the Dispute Act § 29-13 second paragraph are fulfilled and that the appeal should be denied. There is no prospect that an appeal will result in another result.

This is what the Court of Appeal writes, and we dispute that. It's just really a problem here that everything gets angled IMOT US! FACTS IN THIS CASE IS THAT WE HAVE BUILDED, NO PROBLEMS OR REASONABLE WITH, ONLY POSTIVE.

According to the law this: the benefits of granting exemption must be clearly greater than the disadvantages of an overall assessment. It cannot be exempted from case processing rules.
(quote end).

When the PBE, County Council and Civil Ombudsman use this, there are clearly more disadvantages than advantages of having to demolish masonry, stairs and storerooms and not mention one thing. The only thing they can mention as "benefits" is that we have conflicted with some paragraphs and so little. But only this can be negative to us. Otherwise, it is only positive things with what we have built. Mention someone to show clearly that in our case, dispensation and that we will keep the wall, staircase and shed are the only correct ones.

It is positive with masonry that we get a flatter outdoor area. With stairs we get a safe access and with the booth we do not have to use presses and other things about our things. There are a thousand things to mention if needed.

10.) The Court of Appeal writes: Nor is it a mistake that the case officer Aubert was not taken as a witness. The witness was dropped by Christensen during the main hearing. (quote end).

This is about the only sentence in which I agree with what the Court of Appeal writes. But this was a miss on our part when my lawyer and I were so different on the case. The reason for this was probably howlid got into the case late and we made this slip. But we can do that "good" again by Aubert Lange being told next time. It must be allowed to do anything wrong, until it is used to us for all its worth.

11.) The Court of Appeal sees completely proven in that it is a very skewed differential treatment of us. It may well be that the law does not fully take this into account, but then there is something wrong with the law and the wording.

It is obvious when one reads through the Dispute Act and otherwise all Norway's laws, so no one should take precedence or someone be neglected. Here we are neglected, while others get priority.

Blue. Our neighbors just outside of us at Stormyrveien 9 c have exceeded the utilization rate of the plot 54 times more than us, and the case ended in 2018. Thus, the same period that PBE and the public agencies have been doing with us. This is obviously a service error that also violates Norwegian law.

§ 171. Service error.

12.) The Court of Appeal completely ignores the fact that we have had an oral agreement and received oral guidance from PBE here in Oslo. Will remind you that an oral Agreement is as binding as a written agreement according to Norwegian law.

King Kristian the law of the fifth.
(Who says that verbal agreement is the same as the written agreement.)

By Decree 14 Apr 1688, the law came into force from Mikkelsdag (Sep. 29, 1688). Here, only the provisions that are believed to remain in force are included. If repeal of different provisions and if any provisions that are supposedly lapsed, please refer to older editions of Norway's Law.

Fifth Book. About Access, Gods and Gield.
In Cap. About Contracts and Obligations.
1 Art.Everyone is obliged to comply if the hand with mouth, hand and seal promised and entered gardens.
2 Art. All contracts made by the volunteer by the volunteer, and come to the age of them, be they jealousy, hall, gift, alternation, pledge, loan, rent, obligation, forerunner, and other things by what name the name of the name of the man who is not against The Law, or Honor, should be kept in all its words and punctures, as the entry is.
(quote end).

13.) That we should be assessed on the basis of the house plan is incorrect.
It should actually be set aside in our case when our case officer did not guide us according to it, but after the settlement that was in and around our residence and in here in Stormyrveien. In many ways one can say that the court "operates" with the wrong set of laws when they assume that the house plan is valid in our case. It is not, but what Kaja Aubert Lange conveyed. Nothing else. And that it is really against the law to be as hard and square as PBE here in Oslo is, confirmed by the County Governor. If one goes into the law, it speaks of being generous in small deviations which after all apply to us.

Listen to what the law says:
§ 19-2. Exemption decision

- If the benefits of granting an exemption will be clearly greater than the disadvantages of an overall assessment
- whether (sufficient) emphasis is placed on the consequences of the exemption for health, environmental safety and accessibility.
(quote end).

In our case, there are only benefits, there are benefits to "for health, safety and accessibility."

Blue. when the car came with sirens when our daughter had become acutely ill. Then they used up stairs from Stormyrveien, it just shows that what we have built is required. Tear it breaks the law, all common sense and makes no sense.

Final Comment:

It is obvious that we are located for miles within the area it is natural and right to be granted exemption and look with goodwill on what we have built.
That PBE does not want this to us, makes them offenders in my / our eyes!
The fact that they make us "criminals" is really because they themselves are poorly behaved in such a way as to have broken several of Norway's laws and driven by clear discrimination! Unfortunately, they are defended by the judiciary, this is bad!

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