Abstract
The recent demolition of the twin towers in NOIDA was a landmark step in India toward fighting corrupt construction officers and builders and illegal construction. Supreme Court ordered the demolition of these properties as they failed to comply with various technical building standards and were unsafe for residing. These laws and standards were based on ‘certain determinants’ which vary from country to country. Through this article, we seek to highlight the Indian position and further reflect upon global construction laws. The scope of the laws would be limited to those discussed in theSupertech Twin Tower Case.
Supertech Twin Towers- Indian Position on the Construction Laws
NOIDA’s first lease deed was executed on 16 March 2005. An area of land measuring 48,263 sq. Meters to M/S Supertech Limited in Sector 93-A situated at Plot no. 4 for the development of the Emerald Court Group Housing Society, by the name of Emerald Court. A Possession Certificate was issued on 17 March 2005. Further, they sanctioned the building plan for the construction of Emerald Court consisting of fourteen towers, each with the ground and nine floors (G + IX), and a supplementary lease deed was executed by NOIDA in favour of M/S Supertech Limited for an additional land area of 6556.51 sq. Meters in the same plot of land. In addition to the existing sanctioned land under the first lease deed, the total leased area increased to 54,819.51 sq. Meters. After that, another possession certificate was issued concerning the additional land. NOIDA then sanctioned three revised plans, resulting in the construction of additional towers and an increase in the height of the towers for Emerald Court, by which two additional floors were added to the already sanctioned floors in the original fourteen towers, thereby bringing all of them to ground and eleven floors (G+XI). Furthermore, additional buildings were also sanctioned, namely: 1) Tower-15 a residential tower, 2) Tower-16 a cluster of wings including one wing on the ground and eleven floors and three wings on the ground and four floors, and 3) a shopping complex comprising of ground and first floor.
The Resident Welfare Association of Emerald Court challenged the revised plans on the grounds of the construction of Tower 16 and Tower 17 and the increase in their heights from 24 floors to 40 floors. In such a state of disarray, the Resident Welfare Association terminated the validity of the revised plans for the construction of Tower 16 and Tower 17under the following violations:
1. Violation of the distance requirement under building regulations:
According to the revised sanctioned plan, a 9 Meters distance was to be maintained between Towers 1 and 17 at the ground level and had to be connected through a frame at the upper level of floors.NOIDA Building Regulations, 2006 (NBR, 2006) states that the distance between two adjacent towers should be at least half of the tallest building. M/S Supertech claimed that Towers 2 and 17 formed a part of a single building block and so was the case with Towers 1, 16, and 17, therefore, there was no need to maintain the distance regulations.
The Court stated that a developer does not have the right to define the expression “building block”. If they do, it defeats the purpose of regulations to maintain minimum distances, including the health, safety, and quality of life of flat buyers at the mercy of developers. The construction of Towers 16 and 17 was approved under the second revised plan sanctioned under NOIDA Building Regulation 2006. At that time, the height of these towers was meant to be 73 Meters, while the height of other towers, including Tower 1, was meant to be 37 Meters. The minimum distance between Tower 17 and Tower 1 should essentially be 36.5 Meters. On the contrary, the actual distance between these two towers constructed was only 9 Meters violating all regulations and endangering the livelihood of the flat buyers. Therefore, the court held that the second revised plan infringes the NOIDA Building Regulations 2006. Court also noted that the expression “building block” was not defined under the NOIDA Building Regulations 2006.
In the third revised plan, the height of towers 16 and 17 was increased to 121 Meters. Under theNOIDA Building Regulations 2010, the spacing between a building of a height of 121 Meters and another building would be 16 Meters. Thus, the distance between Tower 1 and Tower 17 should have been 16 Meters. Consequently, the Court realised that the third revised plan was also in violation of the NOIDA Building Regulations 2010. This regulation provides for an exception to the 16 Meters minimum distance requirement if the building blocks have dead-end sides facing each other and since the phrase, ‘dead-end side of the block’ was not defined anywhere, the Court interpreted its meaning in terms of the phrase ‘dead-end side of the block’.
Court also refused to accept the contention that only habitable rooms with egress (that is, windows or balconies) will fall outside the ambit of the ‘dead-end side’ of the buildings. NOIDA Building Regulations 2010 (NBC, 2010) did not provide any indication to classify habitable and non-habitable rooms in the context of the phrase ‘dead-end side’.
National Building Code, 2005 (NBC, 2005) prescribes the maintenance of open spaces for buildings above the height of 10 Meters. It was discovered that the minimum open space around Tower 17 should have been 20.45 Meters as opposed to the actual 9 Meters between Tower 17 and Tower 1. Therefore, the second and third revised plans were also not in accordance with National Building Code 2005 (NBC, 2005).
M/S Supertech requested to file for aNo Objection Certificate for the construction of Tower 16 and Tower 17. Further, the Chief Fire Officer issued a temporary fire NOC stating that Supertech will have to make arrangements for fire safety compliant with the regulations of NBC 2005. The act also states that as a whole, the side and rear space around the building must be 16 Meters. The distance between Tower 1 and Tower 17 was only 9 Meters, which was less than the required 16 Meters. Therefore, given that the rear distance requirement under NBC 2005 was not complied with, the temporary fire NOC given by the Chief Fire Officer stood automatically cancelled.
2. Consent of Flat Owners:
Residential Welfare Association of the Emerald Court contended that the sanction plan could not have been revised without the consent of the flat purchasers in the original fifteen towers. In terms of the third revised plan of 2012, the height of Tower 16 and Tower 17 was sought to be increased from 24 to 40 floors. Conclusively, the total number of flat purchasers increased from 650 to 1500. This was a reduction of the undivided interest of the existing purchasers in the common areas. The garden area in front of Tower 1 was also encroached, thereby from the representation that had been made to the flat owners at the time when they purchased the apartments in Tower 1. All this was done without seeking the consent of the flat owners, which violated the provisions of the 1975 Act and the 2010 Act.
Lastly, Supertech argued that the consent of each flat owner could not be taken, and it had to be taken from the Resident Welfare Association (RWA), which came into existence only in October 2013, while the third revised plan was already sanctioned in 2012. The Court found this factually incorrect. The RWA, in actuality, came into existence in 2009 when the first set of apartment buyers moved in.
3. Collision and Illegal Construction:
The Court noted that the record of the instant case was replete with instances that highlight collusion between the officers of NOIDA with Supertech and its management. It was observed:
“The case has revealed a nefarious complicity of the planning authority in the violation by the developer of the provisions of law.”
Further, the Court observed that while the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations ─ the protection of the environment and the well-being and safety of those who occupy these constructions.
The Court was of the view that once it was determined that sanctioned plan for Tower 16 and Tower 17 breached NBR 2006, NBR 2010, NBC 2005, the 1975 Act, and the 2010 Act, it became the Court’s duty to take stock of the violation committed by Supertech in collusion with NOIDA. Therefore, the Supreme Court confirmed the directions the High Court gave, including the order of demolition of Tower 16 and Tower 17 of Emerald Court and for sanctioning prosecution against officials of Supertech and NOIDA.
Application of the International Building Code in the United States of America
The USA is a federal state. Each state has its own building and construction regulations. Some follow their local regulations but quite a few of them have incorporated theInternational Building Code, 2021 (IBC, 2021) into their legal systems with certain elements of local laws.States that have adopted the IBC are California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Maryland, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York State, North Dakota, Oregon, Puerto Rico, South Carolina, Utah, Washington, and Wyoming.” This segment of the paper will analyse the laws which were in violation in the ‘Super Tech Twin Tower Case’ in the light of the legal position in the United States of America (USA).
The Supertech Case included the application of the following laws broadly: (i) Maintenance of open space areas, (ii) Laws regarding the height of buildings, and (iii) Legislations concerning space between the buildings and fire safety norms. We shall see one by one how these laws are incorporated under the IBC, 2021.
- Maintenance of open space areas:
Connecting buildings with public ways or yards is compulsory under the IBC. This open space will be measured in accordance with Section 507.2. Under Indian laws too, the maintenance of open spaces is compulsory for buildings above the height of 10 meters. “However, under IBC, this open space can be reduced in some circumstances, that is when they comply with the following conditions mentioned under section 507.2.1.These conditions include that the reduced width of the open space shall not be more than 75% of the perimeter of the building, exterior walls facing the width reduced must have 3 hours or more fire resistance rating and the exterior wall facing the reduced width shall have opening protectives.”
- Laws regarding the height of buildings:
As perSection 503 of IBC, the height of a building, number of storeys, and the building area would entirely depend upon the “type of construction”. There are five types of construction given underSection 602. This classification isbased on the ‘building element’ or, in simpler words, the type of construction materials used to construct the building and fire resistance ratings. “Type I and Type II include all those structures wherein building elements are ‘non-combustible’. Type III involves those structures where the exterior walls are made up of ‘non-combustible materials.” Similarly, there are two other categories, i.e., Type IV and Type V. Based on this type of construction, the height of the building and number of storeys can be determined, as is provided underSection 504.
- Legislations concerning the distance between the buildings and fire safety norms:
The rationale for mandating space between buildings is to prevent the spread of fire, maintain the privacy of the users, and other safety reasons. “The space or distance between the exterior walls of two buildings, number of openings in the exterior walls, projections, and their ‘occupancy group’ determines the fire resistance rating of the exterior walls.” For example, if a building occupies more than 500 persons, has a greater number of openings such as windows, has ample balconies (projections), and is located very near to another building, then the fire resistance rating of such a building would be more. It will have to comply with strict and high fire resistance standards. However, if the fire separation distance between the two buildings is sufficient, the builder is not required to maintain a greater fire resistance rating. The technicalities concerning the number of projections, openings, their measurements, occupancy group, and the distance between two buildings are provided in a very detailed manner underChapter 7 of the IBC, 2021.
In India, the laws for space between buildings pretty much depend on the height of towers and fire safety norms. As opposed to this, under IBC, in accordance with the distance between two buildings and other components discussed above, the fire resistance ratings must be complied with. Under Indian laws and as we saw in the Supertech case, if the height of the buildings is increased, the distance between them also has to be revised. Under IBC, the height of a building is dependent on a different factor, that is, “type of construction”.
One of the other important issues under the Supertech case was whether the three buildings adjacent to each other but part of the ‘same building block’ will have to comply with the space requirements or will be considered ‘one building’ and be exempted from the space requirements. The Court held that these buildings have to comply with the space requirements between two buildings. “UnderSection 503.1 of IBC also, there is a clear mention that the portions of the tower which are separated by more than ‘one fire wall’ shall be considered to be a separate building. Additionally, underSection 1604.5.1, it is stated that if buildings have portions or areas which are structurally separated, then they will be considered separate structures and not a part of one building.” Therefore, it is clear that ‘structural separation’ and ‘separation through fire walls’ can be a few of the determinants under IBC to understand if the concerned structures are part of the same building.
Another substantial claim by the petitioner in the case was that since the towers facing each other had ‘dead end sides’, they would not have to adhere to the space requirements. Under the IBC, there is no test for determining space between buildings. However, based on the space between two buildings, occupancy, and openings and projections in the exterior walls, the fire resistance rating of walls is calculated. So, since the law already considers the openings and projections in the walls, which can be a reason for the spread of fire, a separate provision that encompasses those situations where buildings have ‘dead end sides’ becomes optional or discretionary. The reason for such a claim is that when the buildings do not have any openings or projections (have dead-end sides), the IBC would automatically subject the building to lower fire resistance ratings. Therefore, there would not be a need to alter the space between the buildings.
Under IBC, the case would be that if the building plan is altered and the space between two buildings is reduced, the builder might have to comply with additional fire safety requirements to prevent the spread of fire due to increased proximity between the structures. This is a very different position from India. The act of demolition occurred in India due to non-compliance with the height, the distance between two buildings, and open space requirements. However, in the states that follow IBC, this demolition may occur due to non-adherence to fire safety norms.
It is pertinent to indicate that some states have local legislations too, which explicitly mentions the space requirements between two buildings, such as theNew York City Zoning Resolution which specifies the standard minimum distance between buildings. The technicalities of minimum distance under this resolution depend entirely upon the openings present on the exterior wall and the height of the building. “For example, if the height of a building is over 50 feet and the adjacent properties have windows facing each other, the minimum distance is 60 feet. But, if the adjacent properties do not have a window facing each other and the exterior walls face each other, the minimum distance is 40 feet.” Therefore, depending on the local legislation, many states might have to vary from the IBC, 2021. Although the construction standard remains the same in general, some technicalities may be added by respective states, and if these standards are not complied with, it might become a reason for the demolition of properties under local laws.
Application of Laws in England and Wales, the UK
The legislation for construction and buildings for the purpose to analyse the Supertech case is given underBuilding Regulations, 2010 andDevelopment Management Standard No. 1. As per Building regulations, 2010, any building work must be done in accordance with Regulation 7 and Schedule 1 of Building Regulations, 2010. We will analyse legal provisions along the lines of (i) Maintenance of open space areas, (ii) Laws regarding space between the buildings, and (iii) Legislations concerning fire safety norms.
- Maintenance of open space areas:
Under theDevelopment Management Standards, the open spaces are referred to as ‘Amenity Spaces’, which means spaces for public use or recreational activities. The area of these spaces depends upon the area of flats or housing they are attached to, daylight, and privacy. “The minimum depth of a garden attached to two houses or flats facing their back is 22 meters which means 11 meters must be the depth of each garden. The area of this garden is also stipulated under the code, which depends on the area of the flat. This provision also takes care of the fact that the garden areas are not overshadowed by adjoining properties.”
- Laws pertaining to space between the buildings:
“A minimum distance of 22 meters must be present between two buildings having two storeys or less. In case the building has more than two storeys, the distance will be increased accordingly. North facing windows in the flats should be refrained from being constructed as the users would not be able to get proper sunlight. It will be interesting to note that the 22 meters gap or the stipulated gap between the building structure has ‘no permitted development rights’. Many situations are given under the statute according to which the builder has to maintain distance from the adjacent properties.
- Legislations concerning fire safety norms:
“As per Regulation 7(2) ofBuilding Regulations, use of combustible materials on the exterior walls of the building is not allowed, and if the building height is 18 meters or more, then it is strictly prohibited to prevent the spread of fire. Furthermore, as per Schedule 1, internal linings must be used inside buildings, or buildings must be divided further in a manner that resists fire.Clause B4 of Schedule 1 mentions that the building should be strong enough to withstand fire for a reasonable period and prevent its spread over adjacent properties.”
As per Indian laws, the open space around buildings is maintained to avoid the spread of fire. However, under the Development Management Standards, these open space requirements are to ensure sufficient space for recreational activities, privacy, and daylight specifically. That does not mean that England and Wales do not have their fire safety norms. Although these fire safety norms do not specify the distance that is to be maintained between two buildings or flats to avoid the spread of fire, they do mention that construction must be in a manner that buildings can be stable during a fire and do not spread to adjacent properties. There are no specific technical standards mentioned under the law as opposed to Indian law.
Additionally, under Indian law, as discussed above, the buildings in the ‘same building block’ will not be considered as one and, therefore, be exempted from the distance maintenance requirement under NBR, 2010. The same is true for laws in England and Wales.Clause B3 of Schedule 1 mentions that a house and a semi-detached house on a terrace would be considered two separate structures. Similar laws would also apply to buildings. It can also be interpreted that if two high-rise buildings very close to each other, they may cause the spread of fire, thereby violatingClause B4 of Schedule 1. Therefore, it will be fair to indicate that the position of England and Wales is the same as that of India on this issue.
With respect to demolition, if the authorities find the buildings in England or Wales to be ‘dangerous’, the builder is either ordered to take action to remove such danger or, if he so elects, to demolish the property. Demolition is the last recourse; the court will either put penalties on the builder or give him reasonable time to adhere to the Building Regulations. In his failure to achieve the standards ordered, the court may order the demolition of the dangerous structure as perSection 77 of the Building Act, 1984.
Conclusion
It is clear how the laws in various jurisdictions differ. The laws in India require a minimum distance between buildings to avoid the spread of fire, and that in the USA is known as the ‘fire separation distance’. However, since there are no standards given under the IBC, 2021, for maintenance of fire separation distance, there exist local laws. As opposed to this, in England and Wales, the main provision only specifies that the distance between buildings must be such that the spread of fire is avoided. More importance has been given to things like privacy, daylight access, etc., apart from the fire spread behind the space requirements. It is also to be noted that the space requirements in England and Wales are in favour of the occupier. In contrast, construction laws in India and USA are pretty much in favour of the builder in that sense.
Disclaimer
The authors assume no responsibility or liability for any errors or omissions in the content of this blog. The information contained in this blog is provided on an “as is” basis with no guarantees of completeness, accuracy, usefulness or timeliness.
About the Authors
Ms. Sukanya Raha is working as an in-house Counsel and legal executive at PS Group.
Ms. Kopal Kesarwani is a 4th year law student at Jindal Global Law School, and is an Associate Editor at IJPIEL.
Editorial Team
Managing Editor: Naman Anand
Editors-in-Chief: Hamna Viriyam and Muskaan Singh
Senior Editor: Aribba Siddique
Associate Editor: Kopal Kesarwani
Junior Editor: Nupur Barman
Preferred Method of Citation
Sukanya Raha and Kopal Kesarwani, “Demolition of the Super Tech Twin Towers vis a vis Global Construction Laws” (IJPIEL, 28 September 2022)
<https://ijpiel.com/index.php/2022/02/28/a-three-way-critique-of-impact-of-concession-agreements-in-the-indian-infrastructure-sector-from-a-competition-law-ports-sector-and-gst-perspective/>
Recent Comments