Appeal against and entry in effect of construction permit

The construction permit is an individual administrative deed within the meaning of the Code of Administrative Procedure (CAP) and the Spatial Planning Act (SPA). The order for its appeal and the persons, entitled to appeal against it, are provided for in SPA.

Article 213 SPA specifies the general procedure for appeal against individual administrative deeds, issued under this act pursuant to CAP. The circle of persons, entitled to appeal against a construction permit, is provided for in article 149, par. 2 SPA, and the citation is exhaustive. Pursuant to par. 3 of the same provision, the interested persons may appeal against the construction permit within 14-day term as of the notice of its issuing. At first sight, the legislative framework in this respect does not give rise to questions and ambiguities, however, upon the detailed and thorough interpretation of the provisions, there may be pointed out at least three questions without a simple answer either in the legislative documents or in the court practice.

As regards the interested parties, there shall be mentioned that they are identified and notified of the relevant administrative deed by the administrative authority, competent to issue it. The legislative framework lacks provisions in respect of the activities to be performed by the administrative authority in relation to the search and notification of the interested parties (references to other state bodies or other actions), as well as for protection of these persons, if they are not recognized as interested and are not notified by the authority. Strictly interpreting the act, there is drawn the conclusion that only the persons, notified by the administrative authority of the issuing of the construction permit, are entitled to appeal against it, not any third persons.

With a view to this interpretation, there may be posed at least a couple other questions. Are the appeals of persons, who are not notified of the deed’s issuing by the administrative authority, eligible? Does the failure to notify them on behalf of the authority constitute sufficient grounds for ineligibility of the appeal or the court itself shall establish the interest of the person within the meaning of SPA and what are the grounds for such an interpretation? How the eligibility of such an appeal is established and is it eligible to consider it in substance before the collection and acceptance of evidence in respect of the eligibility?

In practice, the courts admit to hearing such appeals, what is more, they hear them in substance before ruling on their eligibility. The evaluation of the eligibility of an appeal may not always be done without the collection of evidence in this respect and without scheduling and hearing the case at an open court hearing. In spite of this, the court shall first collect the evidence in this respect and judge on the eligibility before considering the grounds of the appeal in substance. Otherwise, it comes to an absurd situation, where there have been ten open court hearings on one and the same case, lots of written evidence are submitted in the substance of the appeal, a number of investigations are conducted and upon the pronouncing of the final court deed, the court rejects the appeal as ineligible, due to the lack of procedural legitimacy of the appellant and does not discuss at all the evidence in the substance of the case. It turns out that a number of useless actions are performed by the court and by the parties, a long period of time has elapsed and lots of funds are spent, which in practice were not necessary. Regardless of whether the collected evidence in substance leads to the conclusion that the appealed construction permit is unlawful, the court may not cancel it in the presence of an ineligible appeal and the sense of all performed activities remains unclear.

The judgment as to the eligibility of the appeal, filed by a person, who is not notified by the administrative authority of the issued deed and is not deemed an interested party, does not differ in any respect from the eligibility verification as regards the adherence to the term for appeal, for example. If the appellant is notified, but the term for appeal has expired, the court shall return the appeal immediately as ineligible, however, if the appellant is not included in the administrative procedure as an interested party, on the contrary, the court hears the appeal and admits any evidence claims of the appellant, not to prove his/her right to appeal and the capacity of an interested party, but to object in substance to the issued administrative deed.

Such a court practice is not correct and is not grounded on the legislative framework. Furthermore, these activities of the courts compromise the statutory rights of the persons, whereto the construction permit is issued, on account of the unclear status and legitimacy of persons, who are not identified as interested persons in the administrative procedure, however, freely, without the need of proving such a capacity at first, may appeal against any construction permit, and, what is more, to prevent its entry in effect. This court practice provides grounds for misuse and submission of completely groundless appeals, which, however, serve as an obstacle to the entry in effect of the construction permit and might considerably postpone this moment.

All the above considerations lead to the conclusion that the rights of both parties are not protected by the law. On the one hand, it is possible for a person, who is an interested party within the meaning of SPA, not to be identified as such by the administrative authority and not to be notified of the issued deed, whereby the person is deprived of the opportunity to protect his/her statutory rights by means of an appeal against the administrative deed, affecting the person. On the other hand, the admission of such appeals to hearing in substance serves as an obstacle to the entry in effect of the construction permit, quite frequently on unclear and questionable grounds.

As a result of this reasoning, there appears an even bigger problem, when such an appeal is considered eligible for already entered in effect construction permits. This is a hypothesis, where a person, who is not identified as an interested party by the administrative authority and who has not appealed against the construction permit, at a later stage finds in any manner that such an administrative deed is issued and decides that he/she has grounds to appeal. Meanwhile, the construction permit has entered in effect and is executed by the person, whereto it is issued. The moment of appeal might sometimes occur long after the entry in effect of the construction permit.

This hypothesis, which is not a rare practice, leads to a conflict of two legal provisions of one and the same rank, namely the provisions of article 156 SPA and article 166 CAP. Pursuant to the provision of article 156 SPA “the entered in effect construction permits are not subject to appeal”, and pursuant to article 166 CAP “The objection suspends the execution of the administrative deed.” In the particular case, both provisions are procedural in nature, regardless of the fact that one of them belongs to an act of the substantive law. Upon such a conflict, where the provisions are of one and the same rank, there shall be applied the rule, where the special provision derogates the general one, which is contradictory thereto. This interpretation again leads to the conclusion that appeals by persons, who are not identified as interested by the administrative authority, are not eligible, not only on grounds of article 149, par. 3 SPA, but also on grounds of article 156 SPA.

When a person claims that in respect thereof an individual administrative deed, such as the construction permit, has not entered in effect, the person shall prove that pursuant to the prescribed order to that effect. It is not eligible for appeals against entered in effect construction permits by persons, claiming to be interested parties, who, however, are not considered as such by the administrative authority, to suspend the execution of the deed. The rule that the appeal, filed in due time and by persons, actively legitimate for that, suspends the execution of the deed, is not applicable in the particular case, since the deed being appealed has entered in legal effect, the appeal is not filed within the prescribed term, and, what is more, such a term has not started in respect of the appellant, since the latter has not been notified of the issuing of the construction permit.

If the suspending effect of the appeal against an individual administrative deed is absolutized, it would lead to the absurd situation, where each person may appeal any individual administrative deed at any time and the appeal causes the suspending of the execution of the deed, regardless of whether a notice has been sent thereto or not.