Supreme Court Overturns District Court Decision: There is No Duty to Consult with Local Villages / Settlements Committees Before Issuing Home Demolition Orders

On 30 December 2004, the Supreme Court of Israel ruled that an elected leader - the head of a local committee - need not be consulted by a planning and building committee before the issuance of administrative demolition orders against homes in a village/settlement. In the Court's view, consultation with the head of the regional council in which a village/settlement is located is sufficient because the judgment of local elected leaders regarding demolitions can be compromised by their close relationships with residents of the village/settlement.

The Supreme Court, through Justices Matza, Procaccia and Hayut, issued this decision in the context of a case involving the Misgav Local Planning and Building Committee (MLPBC) and the head of the local village committee of Husseniya, an Arab village located in the north of Israel within the jurisdictional boundaries of the Misgav Regional Council. The Council was established in 1982, and is comprised of 30 Jewish towns and six Arab villages, thereby giving Jewish representatives control over the land and planning decisions for the Arab towns under its jurisdiction.

The Supreme Court accepted the appeal of the MLPBC, overturning a decision of the Haifa District Court which cancelled two administrative demolition orders issued by the head of the MLPBC for failing to fulfill its obligation to consult with the head of the elected local committee of Husseniya before issuing these orders. In 2001, for the first time, Husseniya's residents elected their own local committee members.

The MLPBC's appeal to the Supreme Court focused on the legal question of the identity of “the head of the local authority” who must be consulted before issuing an administrative demolition order. Two positions were raised for consideration in this regard: the head of the regional council, and the head of the elected local committee of the village located within the jurisdictional boundaries of the regional council.

The MLPBC argued that it was only obliged to consult the head of the Misgav Regional Council, and not the head of the elected local committee of Husseniya before issuing demolition orders. Representing the respondents - Housni and Yousef Sawaed - Adalah argued that the Planning and Building Law – 1965 should be read as requiring prior consultation with the elected local committee. Adalah further argued that its position was supported by the text and purpose of the Planning and Building Law itself, by the goals of consultation and the principles of community participation, and by the Israeli law on statutory interpretation.

The Supreme Court held that “both the literal interpretation and the purpose [of section 238(b) of the Planning and Building Law - 1965] indicate that, before issuing an administrative demolition order, the head of a regional planning committee is obliged to consult with the head of the regional council, rather than with the head of the local committee of the village in which the illegal building is located.” The Court rejected Adalah's argument that a local authority “includes the local committee,” holding that a “‘local committee' is not a ‘municipality' or ‘local council' as this expression is defined in the Local Authority Laws and in the Planning and Building Law, which applies to this case.”

In addition, the Court ruled that, “Consulting the head of the local committee might bring with it disadvantages which cannot be ignored. It is obvious that the local committee and the head of this committee are close to the interests of the residents of the village in which the illegal building is located, and it is assumed that the head of the committee might have detailed data and other information related to the demolition case which might be important to the head of the planning committee in exercising his discretion when issuing demolition orders. Yet, the state's position is largely correct in claiming that this close relationship to the interests of the area's residents is a double-edged sword. Regarding a small town, there is a fear that diverse considerations, as a result of pressure and influence, and also social and family ties, might influence the position of the representative of the committee, with whom the head of the planning authority must consult. This excessively close relationship to the concerns of the town and its residents might harm the independence and the relevance of the advice that would be given by the head of the committee, and undermine its value and weight.”

It is Adalah's position that the Court's decision deviates from accepted principles of statutory interpretation. The judgment renders meaningless the purpose of the obligation to consult with the head of the local authority, in this case, the local committee, which is to gain public participation through consultation with the representatives of local residents.

Consultation with a community's directly elected body is part of the democratic process. It is especially important in cases where administrative decision-makers with far-reaching powers are responsible for decisions taken without a legal procedure or prior hearings. In Adalah's view, the argument that the close relationship between a local committee and its residents might prejudice the committee's decision-making abilities is very problematic. This argument legitimizes different treatment for villages which are managed by elected local committees, and villages that are managed by municipalities or local councils, which also enjoy close relations with their residents. In addition, this argument is fuelled by unfavorable prejudices against small elected bodies, with the absurd result that because of the close relationship between an elected body and the concerns of its residents - which an elected body is supposedly duty-bound to enjoy - the representative body is not allowed to express its interests.

Permission for Criminal Appeal 1782/03, Misgav Local Planning and Building Committtee v. Yousef and Housni Sawaed (decision delivered 30 December 2004).