A fiscalização municipal face à ocupação irregular de apps urbanas: Até onde vai a responsabilidade?

Abstract

Although the Brazilian Forest Code establishes urban Permanent Preservation Areas (APPs) as environmentally protected spaces not intended for economic exploitation or human habitation—aiming, among other things, to promote the well-being of the population, since these areas are commonly identified as posing imminent risk if occupied—the reality contradicts the law. The prevalence of irregular structures driven by socio-spatial segregation resulting from the absence or inadequacy of oversight raises the question of whether this situation gives rise to civil liability for omission in the exercise of police powers, given that it is incumbent upon the Municipality to issue building permits and to enable intervention by civil defense agencies. Based on exploratory, bibliographic, and interdisciplinary research, this study supports the hypothesis that the local government is objectively liable for damages resulting from omissions in its oversight activities related to irregular occupations in urban protected areas (APPs). However, the Public Administration cannot be regarded as a universal guarantor of rights, particularly where the concurrent fault of the occupants themselves is established. The study concludes that the “reservation of the possible” doctrine does not exclude environmental civil liability or reduce the duty of full reparation, and may only be taken into account, when objectively demonstrated, in determining the material and temporal organization of compliance with complex structural measures. It further concludes that the removal of families may prove legally necessary as a measure of environmental protection and safety, especially where the risks cannot be eliminated or controlled, and must be accompanied by social and housing assistance measures, such as resettlement, housing assistance, or priority inclusion in adequate housing programs.