High Court petition filed against Amendment No. 1 to TAMA 18/4

A petition asks the High Court of Justice to issue an order nisi against the Government of Israel, the National Planning and Building Council, Finance and Environmental Protection Minister Moshe Kahlon and Health Minister Yaakov Litzman, requiring immediate cancellation of approval of National Outline Plan 18/4, Amendment No. 1. The plan discriminates between ordinary residential plots and plots included in urban renewal plans by setting different and disproportionate distances between building plots and nearby small filling stations. The Gatekeepers association, the Movement for the Protection of Rule-of-Law Values, headed by its chair Attorney Uri Shiloh, and architect and attorney Lior Datz petitioned the High Court for an order nisi against the Government, the National Planning and Building Council, Finance and Environmental Protection Minister Moshe Kahlon and Health Minister Yaakov Litzman. They seek immediate cancellation of Amendment No. 1 to TAMA 18/4, approved in June 2016, concerning setbacks for small urban filling stations with no more than four pumps. The petitioners claim that the plan has several fundamental defects apparently arising from improper and extraneous motives of interests operating in the fuel and real-estate markets. They further argue that it is unreasonable and disproportionate, infringes basic rights and obstructs residential projects and increased urban housing supply. In practice, they say, it will also prevent small filling stations from being built in cities, frustrating an earlier government decision calling for immediate measures to reduce fuel prices in Israel.

The discrimination argument rests on the plan’s forty-meter separation requirement for small filling stations, while the government reduced the distance to twenty meters for buildings in urban renewal projects and business complexes, purportedly to protect public health. The petitioners ask whether urban renewal residents are more resistant to fuel vapors than other citizens, or whether their health matters less. What of workers exposed to the same supposed danger for at least eight hours a day, only to be protected at home in the evening? The rationale is puzzling, supporting the claim of an improper distinction.
The petition also argues that the distance can be reduced to twenty meters because the Ministry of Environmental Protection has addressed pollution by requiring stations to install fuel-vapor emission controls under Clean Air Law regulations. The proposed separation distances infringe the property rights of many owners whose building plots adjoin filling-station land: the restrictions leave insufficient space to realize their building rights. That harm to private property has wider consequences for the economy.
The petitioners rely, among other things, on the recommendation of Professor Dimitri Mazor, the investigator appointed by the Subcommittee for Fundamental Planning Issues, who based his position on extensive references, District Committee objections, professional opinions and reliable public reports. They repeatedly stress, however, that the distances supported by the Health and Environmental Protection Ministries were adopted without a professional opinion or empirical basis.
Nevertheless, in March 2016 the National Council rejected the subcommittee’s recommendations, despite repeated admissions that the decision lacked any empirical or factual basis. There is no precedent for this rule in any country, particularly OECD states or the European Union, known for its strict standards. It was also found that the original reason for the distances was acoustics rather than pollution, environmental protection or air quality.

The public interest and powerful market players The Israeli government has tried unsuccessfully to increase competition in the fuel sector since 1988. No real progress has been made. As of 2015, four fuel companies controlled 86% of Israel’s filling stations, a troubling figure showing concentrated control of a market that ultimately harms consumers’ pockets. The State Comptroller’s report recommends adding small, internal filling stations within built-up urban areas, particularly in the center of the country, as a significant contribution to tackling Israel’s cost of living. One principal objective of TAMA 18/4 is increased competition in the fuel sector; paradoxically, its restrictions prevent it from achieving that objective. v Legal argument: defects in the decision The petitioners allege numerous defects in the National Planning and Building Council’s deliberations that led to the government’s decision, contrary to proper public-administration standards. The decision was made without explanation, reasoning or professional opinion, relying on a single entirely unsubstantiated argument: fear of cancer. Different provisions for residential plots in urban renewal projects and other plots infringe equality. The petitioners believe this reflects a political deal between the National Council and Environmental Protection Ministry representatives, whose motives are unclear to them. The defects include: - Four different versions of the decision, during which separation distances changed from eighty to forty meters and were reduced to twenty meters for urban renewal plots. The final version stated that no separation-distance restriction was needed at all; instead, public health would be protected from air pollution by locating the elevator and stairwell away from the facade adjoining the filling station. - The plan infringes individual property rights and equality. It should be interpreted in accordance with the limitation clause in Basic Law: Human Dignity and Liberty. - According to Datz and Attorney Shiloh of the Gatekeepers association, making the decision without scientific or research foundations or substantive evidence violates the principles governing administrative authorities. The petition also addresses the number of deliberations. Their frequency might suggest thorough examination of every aspect, but in practice, it alleges, the repeated discussions were intended to wear down planning bodies one-sidedly, paving the way for a political compromise and appeasing interested parties.