Taking an active role during the creation of the zoning map is a crucial prerequisite for the owner of an affected land plot to prevail in a judicial review of the zoning map.
The zoning documentation issued by municipalities for their respective territories under the Building Act represents the principal regulatory framework for the way in which land within the municipality’s borders may be used. Sooner or later, almost every owner of land is forced to familiarize themselves with the details of the local zoning plan as they affect their property.
But what actual options do owners have to take influence on the concrete shape which the municipal zoning plan of “their” home town will take? And what shall one do if the municipality decides that, exercising its powers as a self-governing territorial unit, it will draw up a new zoning plan? Or amend the existing plan, to the disadvantage of certain land owners?
The Building Act anticipates this kind of situation and grants the owners of affected land plots the right to defend their interests during the creation (or modification) of the zoning plan, primarily by bringing written comments, but also by initiating an ex post judicial review of the concrete solution that was adopted.
The rich body of case law of the Supreme Administrative Court with respect to this particular topic clearly shows how important it is that the owner of affected land plots take initiative during the compilation (or update) of the zoning plan, if they are to have a chance of success when seeking a judicial review.
For instance, last year, on 27 September 2023, the Supreme Administrative Court handed down judgment No. 7 As 18/2023-31, in which ruled (not for the first time) that the proportionality of a proposed solution is not open to court scrutiny if the land owner for no good reason remained passive, not bringing any substantive complaints or comments against the proposed plan even though this is their right and, in the sense of due care, their obligation. If the court were to perform a review under such circumstances, then this would run counter to the constitutional principle of the separation of powers, the right of self-governance, and the protection of legal certainty on the part of other owners who actively defended their rights.
The Supreme Administrative Court arrived at a similar conclusion in judgment 10 As 51/2023-55 of 16 April 2024 which states explicitly: “Given the procedural idleness of the complainant in the proceedings, the Supreme Administrative Court fails to see anything unlawful about the defendant’s course of action (i.e., the delineation of public space on land owned by the complainant). It was not the defendant’s responsibility to assume that the complainant would not consent to the proposed solution. To the contrary: it was upon the complainant to timely bring objections or comments, whereupon the defendant would have been obliged to take these into account and address them.”
Against this backdrop, we must stress once more how the active involvement of owners of affected land plots in the creation (or amendment) of the zoning plan is a crucial prerequisite for success in a potential judicial review of the chosen solution.
zoning plan; Building Act; changes to the zoning plan; affected land plot
