Czech Republic: Building Act Amendment Challenged In Front Of The Constitutional Court

On 1 January 2018, an amendment to the Building Act ("Amendment") will come into effect. The Amendment will introduce a number of conceptual changes adopted primarily with the aim of accelerating and streamlining protracted planning and building permit proceedings that have often spanned several years. Its future is, however, uncertain. On 16 August 2017 a group of senators filed a petition to the Constitutional Court to cancel certain provisions of the amendment ("Petition"). The government exercised its statutory right and joined the proceedings on the Petition. Subsequently, it submitted its opinion especially on the reasons for passing the Amendment including the contested provisions. As the Amendment comes into effect relatively shortly, it cannot be determined with certainty whether the Constitutional Court will manage to rule on the Petition to cancel certain provisions by that time.

Generally, the approval process preceding the commence- ment of construction works in the Czech Republic is extremely lengthy. On average, the duration of the planning and building permit proceedings, i.e. from the moment an application is filed to the moment an effective decision is received, which allows the developer to actually proceed with its building plan, exceeds the period envisaged by the Building Act provisions multiple times.

Therefore, the Amendment is intended to streamline the proceedings. It includes a range of measures that are aimed to sufficiently accelerate the proceedings under the Building Act. One of the measures for instance involves allowing civic associations (unincorporated associations) to participate only in proceedings assessing potential impact on the environment, nature and landscape. The Amendment also introduces new rules for reviewing binding opinions issued for purposes laid down by the Building Act. These are the very two measures that the constitutional Petition proposes to cancel.

Under the first contested draft provision, unincorporated associations are allowed to participate only in pro- ceedings specified by the Environmental and Landscape Protection Act; the unincorporated associations will be also allowed to participate in planning and building permit pro- ceedings that involve environmental impact assessments (EIA). Under the amended regulation, unincorporated asso- ciations will no longer be allowed to participate in planning and building permit proceedings that do not involve an EIA procedure; at the same time, they will still be allowed to participate in proceedings under the Environmental and Landscape Protection Act (e.g. proceedings to register a significant landscape feature, proceedings to declare a temporarily protected area, proceedings to approve activ- ities in national park protection zones, etc.).

The petitioners claim the contested provision is in con- flict namely with Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms, which guarantee the right to judicial and other protection and to fair trial. The petitioners assert that the contested provision prevents certain groups from participating in proceedings under the Building Act that do not involve environmental impact assessments, and consider this practice as conflicting with the constitutional system of laws of the Czech Republic.

The second contested draft provision involves the intro- duction of new rules and restrictions on reviews of binding opinions issued for purposes laid down by the Building Act. Under the new rules, binding opinions may be reviewed only within a period of one year from the date of issue; unlawful binding opinions may be cancelled only in appellate proceedings against a decision qualified by the binding opinion. It will be possible to commence a review of a binding opinion only upon an application by one of the participants and not by the very administrative body acting ex officio. Last but not least, it will not be possible to reopen proceedings if a binding opinion, underlying an already valid and effective decision that constituted certain rights to the addressees (namely in order to protect the rights acquired bona fide and to ensure legal certainty to addressees), has been altered or cancelled.

In this case the petitioners assert that the contested provision is in conflict with Article 1 of the Constitution of the Czech Republic and Articles 1 and 11 of the Charter of Fundamental Rights and Freedoms, which hold that all people are equal before the law and guarantee the protection of ownership right, reiterating the above in connection with the right to judicial and other protection.

As mentioned above, the government later joined the proceedings on the Petition to cancel Amendment provisions; in its statement it presented a comprehensive set of arguments to defend the Amendment and its compliance with the Constitution. It also assessed the benefits of the changes being proposed and the need to preserve them in order to streamline planning and building permit proceedings that are currently extremely lengthy. The aim of both provisions of the Amendment contested in the Petition is to rectify the incorrectly set procedural rules which inadequately interfere, without having legitimate grounds, into the legal certainty of applicants for planning decisions and building permits and other stakeholders. Moreover, the provisions mentioned can potentially accelerate and streamline the planning and building permit proceedings, the related and follow-up administrative proceedings, which was the main objective of the Ministry for Regional Development of the Czech Republic when drafting the Amendment and the main aim of the law-making process that spanned several years.

We believe that none of the contested provisions of the Amendment is intended or is able to completely exclude associations from taking part in administrative proceedings aimed at assessing and influencing possible environmental impact of a plan, or to substantially restrict or completely rule out the review of binding opinions issued for the pur- pose of proceedings under the Building Act.

In both cases, the provisions of the Amendment only mention the unreasonable negative impacts that associations taking part in the proceedings and the review of binding opinions in line with the existing legal regulations have on the protection of public (and society-wide) interest in prompt and efficient planning and building permit proceedings and on the protection of legal certainty and legitimate expectations of applicants and other stakeholders concerned about their public rights in the proceedings.

Now it is necessary to wait until the Constitutional Court issues its decision which will either cancel the contested provisions of the Amendment or will not find that there is any conflict between the provisions and the Czech system of constitutional laws and dismiss the Petition to cancel the provisions of the Amendment. If the Constitutional Court, however, fails to rule on the Petition by 1 January 2018, the Amendment, including the contested provisions restricting the participation of unincorporated associations and introducing the new rules governing the review of binding opinions, will come into effect on that day.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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