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RevCEDOUA A. 7, nº 14 (2004) >
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|Title: ||Medidas de tutela da legalidade urbanística|
|Authors: ||Lopes, Dulce Margarida de Jesus|
|Keywords: ||Direito do ordenamento do território e do urbanismo|
“obras” de raiz ilegal
|Issue Date: ||2004|
|location : ||Local:Coimbra|
|Abstract: ||Res:A manutenção de “obras” de raiz ilegal configura um dos principais problemas do nosso direito do ordenamento do território e do urbanismo, pelo que urge encontrar e operacionalizar formas de reposição da legalidade urbanística. Este artigo tem como escopo a análise dos principais instrumentos que o ordenamento jurídico português coloca à disposição das entidades públicas administrativas para prosseguir tal desiderato, pretendendo evidenciar a sua utilidade ou, ao invés, a sua insuficiência.|
Res:The maintenance of illegal constructions is one of the main problems in our country’s urban planning law. Therefore, it is necessary not only to discover but also put into practice forms of restoring urbanistic legality. This article aims to analyse the main instruments that the Portuguese legal order places at the disposal of public administrative entities to pursue such an objective and seeks to underline their utility and insufficiencies. In order to do this it is necessary to analyse, in some detail, article 102 to 109 of the Decree law nº 555/99, that foresees protective or restorative measures of urbanistic legality. They are configured as administrative instruments that one resorts to after the occurrence of an urban illegality and that are designed to eliminate contradictions with this part of the national legal order. Within this scope, the powers that protect urban legality can be seen as functional ”duties” and not merely administrative faculties. Therefore, the Administration can not fail to carry them out. As a manner of determining the legal nature and configuration of these instruments, an initial part is introduced which inserts them within the scope of the administration’s policing activity and relates them to the administration’s verification and sanctioning activities. One also states that the recourse to legality protection measures occurs in urban operations, executed or in execution, which can be found in the following situations: they do not have the necessary licenses or authorizations, do not conform themselves with the respective project or with the licensing or authorising conditions; or in violation of applicable legal and administrative norms. Any one of these situations can imply recourse to differen-tiated measures of legality protection. On this behalf – beyond the cautionary procedure that may result in an embargo (or in the cessation of the activity) – and in the aftermath of a legalisation procedure, which today has legally binding moments, the following measures may be adopted: the realisation of corrective and alteration works; the initiation of an authorisation or licensing procedure or a request to alter the license or the authorisation. In the case where it is impossible to conclude in favour of such a legalisation, one is left with more limitative mechanisms: demolition, land repositioning and the definitive cessation of the utilisation. Finally, exceptional legalisation legal regimes are also analysed such as the ones applicable to illegal lot operations as well as other forms of legalising illegal activities, especially the possibility to approve plans that are directed towards normativly framing realities that are contrary to urban standards in force.
|Appears in Collections:||RevCEDOUA A. 7, nº 14 (2004)|
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