Persistent uncertainty regarding the amendment to the Czech Building Act

The amendment  

A new amendment no. 225/2017 Coll., (the "Amendment") to Act No. 183/2006 Coll., on Town and Country Planning and the Building Code (the "Building Act") became effective as of 1 January 2018 and significantly modifies the current state of the approval process in order to accelerate construction in the Czech Republic.  

Exclusion of environmental organisations

Prior to the effectiveness of the Amendment, environmental organisations were allowed to participate in ordinary zoning and building proceedings under the Building Act and to challenge the decisions adopted therein. Under the Amendment, however, they are no longer allowed to enter into the vast majority of proceedings stipulated in the Building Act. Thus, environmental organisations will not be able to extend the duration of the administrative proceedings by submitting objections and appeals. The only proceedings they are still allowed to participate in and affect the outcome of are the EIA proceedings under Act No. 100/2001 Coll., on Environmental Impact Assessment. Since the Amendment significantly reduces the procedural rights of these organisations, a group of senators lodged a constitutional complaint for the violation of the right to judicial and other legal protection and the right to a favourable environment.

Review of binding opinions

In the binding opinion, the administrative authority, in contrast to the building authority, expresses its opinion on the underlying issues for the approval process, such as protection of nature, water, air, historical monuments, public health, etc. Consequently, the building authority encompasses the binding opinion as part of its own administrative decision. Under the Amendment, only the participants to the proceeding are allowed to challenge the binding opinion by lodging an appeal against the subsequent administrative decision within one year of the adoption of the binding opinion. The review proceedings initiated by the superior administrative authority to modify the binding opinion in itself can no longer be employed. Provided that the administrative decision is not adopted within one year of the adoption of the binding opinion, participants will not be able to challenge the administrative decision, including the binding opinion. This procedure is deemed to be contrary to the protection of subjective rights of individuals and legal persons and thus subject to constitutional review.    
Joint proceedings

In order to accelerate the approval process, several types of joint proceedings have been introduced:

·         zoning proceedings with EIA

·         joint zoning and building proceedings

·         joint zoning and building proceedings with EIA

Based on them, the investor obtains a single administrative decision instead of separate ones. However, it remains possible to opt for separate administrative proceedings, provided that it is more suitable for the building project. While opting for any of the joint proceedings, investors should be aware of the necessity to submit the more detailed documentation at one time compared to the separate proceedings. The significant benefit of joint proceedings is one set of time limits only; the first and the second mentioned proceedings shall last up to 60 days (90 days in complex cases), and the third option shall last up to 90 days (120 days in complex cases). In addition, other parties to the joint proceedings are able to raise objections and appeal against the administrative decision only once, whereas in separate proceedings, the investor frequently faces repeated objections and appeals.

Extension of time limits for the adoption of territorial plan

So far, some major cities (e.g. Prague, Brno) authorise building projects under the territorial plans issued before 2006, when the current Building Act became effective and stipulated a new procedure for the issuance of territorial plans. Municipalities were obliged to issue territorial plans in line with requirements set forth in the Building Act by 2020. Due to delays in adopting the new territorial plans, Prague and Brno were likely not to meet the deadline and thus block building projects on its territory. Therefore, the Amendment extends the final time limit for the adoption of the territorial plan under the Building Code from 2020 to 2022.  

Summary

The Amendment alters the Czech Building Act in favour of investors; however, some of these provisions are highly controversial and thus subject to ongoing constitutional review. 

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