isawiya 224.88 AJ.
(photo credit: Ariel Jerozolimski [file])
The High Court of Justice is unwilling and often unable to intervene in government decisions regarding physical planning decisions, to the detriment of the Israeli public and particularly the Palestinians, who have nowhere else to turn for impartial remedy, planners at Bimkom - Planners for Planning Rights told The Jerusalem Post on Sunday.
"The resort to the High Court of Justice is essentially for appearances sake only, for the world to see," said Nir Shalev. "In theory, there is judicial review of government decisions regarding physical planning, but in essence there is nothing."
Shalev and Alon Cohen Lifshitz, an architect at Bimkom, were particularly incensed by the contrast in two recent back-to-back decisions by the High Court regarding the residents of the Palestinian village of Bil'in and the adjacent Jewish neighborhood of East Matityahu.
In one of the petitions, the villagers demanded that the route of the barrier be shifted because it was planned to protect East Matityahu, even though the neighborhood had not yet been built. In the second petition, the villagers demanded that all the buildings which had been built so far in East Matityahu be torn down because they had been given building permits based on a zoning plan that had not been approved.
On September 4, the court accepted the petition regarding the route of the barrier.
The next day, the court rejected the second petition, ruling that the zoning plan had been legally approved retroactively and that the homeowners who guilelessly purchased the apartments should not be punished for the actions of the local council which issued the illegal permits. But Shalev and Alon charged that in doing so, the court had ignored, and in some cases not known about, planning facts that could have changed their minds.
Shalev charged that the court has made it clear all along that it will not intervene in planning decisions. He pointed to a High Court ruling handed down on December 10, 2006, in which Acting Justice David Cheshin wrote, "It has been determined by judicial legislation that this court will not intervene in the decisions of the planning authorities except for cases in which they acted illegally."
According to Shalev and Lifshitz, there has only been one case in which the High Court accepted a petition against the planning authorities. That case involved the failure of the local council to publish a zoning plan before it was given final approval.
But while the Jewish population has recourse to a three-tier hierarchy of autonomous planning councils - the local, district and national planning committees - the Palestinian population can only resort to the completely centralized Higher Planning Council and its branches, whose members are all appointed by the military commander.
According to Shalev and Lifshitz, the Jordanian law which had been in effect in the West Bank before the Six Day War provided for a highly refined committee made up of representatives of the various interests affected by planning decisions. Military Order 418, which takes precedence over Jordanian law, introduced a system giving the military commander full control over the composition of the planning committees.
Thus, the only independent judicial instance that Palestinians can appeal to regarding issues of physical planning is the High Court of Justice. Yet the High Court refuses as a matter of policy to intervene in such complaints.
Beyond the policy question, the High Court, according to its present mandate, is unequipped to deal with planning issues, said Shalev. It cannot hear witnesses, clarify facts or go into the details of an issue. "The court cannot deal with factual disputes, while in most petitions involving physical planning, factual disputes arise," said Shalev.
For example, the inability to examine facts created problems regarding the Alfei Menashe petition, said Shalev. In order to make the settlement of Alfei Menashe contiguous with Israel, the barrier planners created an enclave penetrating several kilometers into the West Bank and trapping five Palestinian villages. The court ordered the army to tear down the barrier and build a new one which would cause less harm to the villagers. However, it did not go into the details of where the new route should be and left that up to the army. According to Shalev and Lifshitz, the army's new route was actually more harmful than the original one. The High Court, however, rejected a petition by the villagers against the new route.
In the case of Bil'in, although the High Court gave the state guidelines for rerouting the barrier, it is not a foregone conclusion that the new route will be a less harmful to the villagers than the existing one.
However, the Bimkom planners were more upset by the High Court's alleged refusal to deal with the planning objections raised by the petitioners, represented by Attorney Michael Sfard, in the petition to demolish the apartments. For example, according to Jordanian planning law, the authorities should have prepared an outline zoning plan for all of Modi'in Illit, a town of about 30,000 residents with high-density residential construction in the pipeline. An outline plan is a statutory document that determines residential building densities, road networks, land allocations for public buildings and green space, special uses and so on. The idea of the plan is to make certain that the needs of the residents will be met according to priorities that take the entire community - present and future - into account. The planners argued that despite Jordanian law, there was no outline zoning plan for Modi'in Illit and that the town - already one of the largest Jewish towns in the West Bank - was built by patchwork, without an overall vision and without overall needs taken into account. They told the Post they were also concerned that a non-statutory master plan calls for establishing a municipal park for all of Modi'in Illit on Palestinian-owned land containing olive orchards. While the master plan has no legal status, it indicates that certain municipal needs have not been taken into account within the current boundaries of the Modi'in bloc.