The Taichung High Administrative Court rendered the 108-Su-327 Decision of May 7, 2020 (hereinafter, the “Decision”), holding that the repair of illegal building shall mean the repair or change of the foundation, beams, columns, etc., within the scope of the original specification without demolishing the structure of the building, and in addition, the repair of each item should account for less than half of the item.
According to the facts underlying this Decision, the Plaintiff engaged in unauthorized construction of the building at issue on the land at issue without applying to the Defendant (Nantou County Government) for building approval. The building at issue was subsequently reported to be a new illegal building. As a result, the Defendant notified the Plaintiff that the application for a construction license shall be supplemented pursuant to building laws and regulations after the notice was received and that a notice on the demolition of the building at issue would be served in accordance with Article 5 of the Regulations Governing the Handling of Illegal Buildings if the Plaintiff failed to comply or supplement the construction license application within the required period. The Plaintiff submitted a written statement to the Defendant to communicate that since a neighboring building occupied a portion of the land at issue illegally, the supplemental application for the license could not be made until a final court decision was rendered. Since the Plaintiff still failed to supplement the license application within the required period, the Defendant rendered a disposition to demolish the illegal buildings (hereinafter, the “Original Disposition”) and notified the Plaintiff that since the supplemental application for the construction license was not made within the required period, the building at issue shall be demolished in accordance with Article 5 of the Regulations Governing the Handling of Illegal Building. Dissatisfied, the Plaintiff filed an administrative appeal, which was rejected. Therefore, the Plaintiff brought an administrative action.
It was pointed out in the Decision that, pursuant to the regulatory purposes of Article 25 of the Building Law and Article 2 of the Regulations Governing the Handling of Illegal Buildings, those buildings which are constructed without authorization and without application to the building authority for review and a license shall be regarded as illegal buildings. Although Article 12, Paragraph 1 of the Regulations Governing the Handling of Illegal Buildings provides that an illegal building may be repaired before it was demolished or sorted out pursuant to applicable requirements, still there shall be no new construction, addition, modification or renovation. The above-mentioned repair should mean, pursuant to the regulatory purpose of Article 9 of the Building Law, repair or change of the foundation, beams and columns, load bearing walls, floors, roof trusses and roof structures within the original scale and scope without demolishing the structure of the building and with the repair of each repair item accounting for less than half of the item. Conversely, if half of each item is exceeded, it would not be regarded as simple repair and should be deemed an act of renovation. In case of new construction in the original building or rebuilding after the entire building is demolished, this is an act of new construction, which requires a prior application to the building authority for approval and for a license. Otherwise, the building would be regarded as an illegal building.
It was further indicated in this Decision that the pictures and quotation produced by the Plaintiff are not sufficient to prove that the building structure was not changed and was merely reinforced. Moreover, even if the supporting structure of the building at issue was created based on the renovation of part of the beams and columns of the original building, still pictures showing the appearances and interiors of the building at issue indicate that over half of the foundation, beams and columns, load-bearing walls, floors, roof trusses and roof structures of the building were repaired and changed, which constitutes an act of renovation under Article 9, Subparagraph 4 of the Building Law and is not an act of repair. According to the above explanation, construction may not commence until an application is filed with the Defendant for approval and for a license. Since the Plaintiff engaged in the construction without applying first, the building so constructed is certainly an illegal building. Therefore, it was determined that the Defendant did not make any mistake when rendering the Original Disposition to notify the Plaintiff that the building at issue should be demolished in accordance with Article 5 of the Regulations Governing the Handling of Illegal Buildings since the formalities for supplementing construction license application were not followed within the required period. The Plaintiff’s assertion that the building at issue was an “old illegal building” within the meaning of Article 12 of the Regulations Governing the Handling of Illegal Buildings and only involved an act of repair is not acceptable.