The Constitutional Court found No 475 / 2006 Coll.
The Constitutional Court found of 1 August 2006 on the application for annulment of the Order of the Municipality of Pozlovice No 2 / 2004 on the building closure
Valid
The Constitutional Tribunal found
Text versions:
30.10.2006
475
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 1 August 2006 in plenary in the composition of Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Jiří Mucha, Jan Musil, Jiří Nykodém, Pavel Rychetský, Miloslav Dobrný, Eliška Wagner and Michaela Židlická on the proposal of the Minister of the Interior of Mgr. František Bublan on the annulment of the order of the municipality of Pozlovice No. 2 / 2004 on the building closure
as follows:
I. Article 3 (3) of the Pozlovice Municipality Regulation No 2 / 2004 on a building closure, which reads: "An exception to the restrictions referred to in paragraph 1 may be granted, where justified, by the Pozlovice Municipality Council, on request."
II. In other parts, the application is rejected.
Reasons
Recital of the proposal
1. By a proposal pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), § 64 (2) (g) of Act No. 182 / 1993 Coll., on the Constitutional Court as amended (hereinafter referred to as "the Law on the Constitutional Court") and pursuant to § 127 and § 124 (3) of the Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended, (hereinafter referred to as "the Law on Municipality"), the Minister of the Interior of Mgr. František Buslan (hereinafter referred to as "the Propositor") is hereby annulled.
2. The appellant noted that the contested regulation was approved by the Council of the Municipality of Polovice at its meeting on 30 June 2004 and that all the legally prescribed conditions for its validity and effectiveness were fulfilled. The Regional Authority of the Zlín Region (hereinafter referred to as the Regional Authority) made a call of 15 February 2005 to the Municipality of Pozlovice for a remedy. The Ministry of the Interior concluded that the contested regulation was contrary to the law and therefore, by measure of 25 August 2005 No. On 29 September 2005, the Municipality of Polovice expressed its views on the entry No 30 / 05 / Če-1 in such a way that it disagrees with the possible contradictions of the regulation and does not intend to remedy it, and the Ministry of the Interior suspended the effectiveness of the municipal regulation by means of Decision No 977-5 / 1-2005 of 22 February 2006.
3. According to Article 11 (1) of the Municipality Act, the appellant stated that the Municipality may, under the law and within its limits, issue a municipal order, if it is empowered by law to do so. According to Section 61 (2) of the Municipality Act, the municipality is governed by laws and other legislation, including municipal legislation, i.e. generally binding regulations and regulations. When issuing regulations, they shall respect the limits of legal authorisation. These legal limits can be derived in the present case from Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, and other specific legislation relevant to the issue. According to the appellant, it follows that the municipal order must also comply with the other municipal legislation already laid down and must respect the requirements for the content definition of the building closures, since the regulation issued on the basis of the statutory authorisation (§ 33 (3) of the Building Act) must be regarded as a type of territorial decision under the Building Act. This conclusion follows both from the building law and from the finding of the Constitutional Court sp. zn. However, the fact that the municipal building closure order is a specific type of zoning decision envisaged by the construction legislation also implies that the requirements for the content of the regulation must be derived not only from the provisions of the legislation governing the building closure decisions, but also from the overall context of the zoning legislation, which clearly defines and distinguishes the different types of zoning decisions.
4. The Municipality of Polovice laid down the conditions for the location and implementation of the buildings under the contested regulation. However, the regulation of these conditions is the subject of a different territorial decision under the construction law, namely the decision on the location of the construction. The content of the decision on the location of the construction is governed by Section 4 of the Decree of the Ministry of Regional Development No. 132 / 1998 Coll., implementing certain provisions of the building law, as amended, hereinafter referred to as the "Implementing Decree '. According to Section 4 (1) (d) of this provision, the decision on the location of the construction site, the conditions for the location of the building on it and for the processing of project documentation, including the scope and details of its processing. The conditions for the location of the construction referred to in paragraph 2 of this provision shall, inter alia, lay down requirements for health, the environment, the protection of urban and architectural values in the territory, including the identification of the type and colour of external structures (covers, plaster, coatings, etc.), and requirements for the height and location of the construction. Since the regulation in question contains the conditions for the implementation of the buildings, determines the height of the buildings and the technology for the implementation and location of the buildings, the municipality has excluded its publication from the legal limits of the substantive scope, since these conditions are only authorised to be laid down by the competent building authority in administrative (territorial) proceedings. This conclusion of the appellant is also supported by the opinion of the Ministry of Local Development as the Central Administrative Office of the Land Planning and Construction Regulations of 22 July 2005 No 21813 / 05-63 / 1527. It also follows from that opinion, inter alia, that the adoption of the contested regulation infringed Article 33 (3) of the construction law by Article 3 (1) (a) and (b) of the municipal regulation. Moreover, in the present case, it is the exercise of the delegation of the municipality, i.e. the state administration, and the municipality must therefore be strictly within the limits of the relevant legislation, since according to Article 2 (3): The Constitution may be applied only in cases, within the limits and in the ways laid down by law.
5. Article 3 (3) of the Regulation provides that an exemption from the restrictions referred to in paragraph 1 may, where justified, be granted at the request of the Council of the municipality of Polovice. In addition, the appellant submits that the powers conferred on the Council go beyond Article 99 (1) of the Municipality Act, since under that provision in the field of delegation it is for the Municipality Council to decide only if the law so provides. For this reason, the provision of the Regulation is also contrary to the law.
6. The appellant pointed out that the provisions which were not found to be illegal themselves lack legal relevance. Therefore, the Constitutional Court proposed that the Constitutional Court should abolish the finding in the Collection of Laws on the date of the publication of the Order of the Municipality of Pozlovice No 2 / 2004 on the construction closure.
Procedure and recap of the observations of the parties
7. According to Section 69 (1) of the Constitutional Court Act, the application was sent to a party. In its observations of 21 April 2006, the Municipality of Pozlovice made a proposal for the Constitutional Court to reject the proposal.
8. The Municipality of Polovice first confirmed the applicant's claim that all the legal conditions for the validity and effectiveness of the contested Regulation were fulfilled and that this Regulation is still in force in the version adopted on 30 June 2004. As regards the argument of the Minister of Interior, the Municipality stated that it did not agree with the allegation of the alleged illegality of the Municipality's order that it would "exclude it from the legal scope of the case ', since in the present regulation it" laid down the conditions for the placing of buildings and their implementation', such conditions being authorised only by the competent authority in the territorial proceedings or in the territorial decision on the location of the construction.
9. Furthermore, the Municipality of Pozlovice pointed out the shortcomings in the delivery of individual documents. It was represented throughout the proceedings by a lawyer who was omitted at the time of service and argued by the case-law of the Constitutional Court (sp. zn. III. ÚS 138 / 2000, sp. zn. II. ÚS 157 / 03 - Reports of decisions, Volume 21, Found No 53; Volume 33, Found No 57). The decision of the Ministry to suspend the legislation has a formal defect in that it does not contain any instruction on degradation [Sections 47 (1) and (4) of Act No 71 / 1967 Coll., on administrative procedure (Administrative Regulations), and § 179 (1) of Act No 500 / 2004 Coll., Administrative Regulations].
10. The Municipality Regulation in Article 1 provides that its purpose is to protect the territory from the location and implementation of structures which significantly disturb the landscape, to create conditions for the sustainable development of the territory, in particular spa and tourism in the area of the concentration of recreation. This purpose of the Regulation does not in any way deviate from the limits laid down in Article 32 (1) (d) of the Construction Act and Section 7 of the Implementing Decree. It is based on the text of the valid zoning plan of the Municipality of Pozlovice and according to it "only such structures, facilities and facilities which do not violate the spa climate, vegetation, hydrological conditions, calmness and aesthetic appearance of the spa site '(point 3.8, p. 35 of the text reports of the zoning plan) may be allowed.
11. In this context, the municipality further stated that the Záplátelstvo Municipality of Polovice had approved, by its Resolution No 21 / I / 2005 / ZO of 10 February 2005, the intention to purchase a new zoning plan for the Záplatelstvo municipality, which aims, inter alia, to improve the conditions of protection of the landscape character and thus the recreational nature of the municipality. The construction closure regulation therefore limits the construction activity which could prevent the future use of the territory or its organisation under the planned planning documentation, which is fully in line with the definition of the objective of the prohibition or limitation of activity through the Institute of Construction closures pursuant to § 7 (1) (c) of the Implementing Decree. The Municipality of Polovice expressed the belief that the contested regulation contained all the elements laid down in the provision. It referred to Article 3 (1) (a) and (b) of the Regulation, where it identified in a specific, unambiguous and understandable manner the restrictions (s) on construction activities which could make it impossible to use the territory or its organisation in the future according to the planning documentation prepared.
12. The Municipality of Polovice pointed out that the Minister of the Interior in his proposal, as the Ministry in the decision to suspend the effectiveness of the municipality's regulation, has completely disregarded the fact that the territorial decision on the location of the building, the elements of which are defined in the provisions of Section 4 of the Implementing Decree, always lays down the conditions for the location of a very specific building as defined by the proposal for a territorial decision (which must contain all the information provided for in Section 3 of the Implementing Decree). On the other hand, the municipal zoning decision or regulation on the construction closure provides for general rules or prohibitions concerning a particular type of future construction activity in the territory. This is also the case with the municipal order in question. This Regulation does not lay down the conditions for the location of any particular construction (which is actually reserved for the territorial decision on the location of the construction), but defines as a general binding municipal law, issued on the basis of an authorisation (Section 33 (3) of the Construction Act), general binding rules for the case of a type of future construction activity in a defined territory.
13. For the reasons set out above, in particular because the Minister of the Interior oversees the difference between the content of the municipality's building closure regulation concerning an indefinite number of possible buildings of a type in the future and the content of the zoning decision, the municipality considers the argument contained in the proposal by the Minister of the Interior to be incorrect.
14. In the part of the proposal in which the Minister invests the municipality as an unlawful text of Article 3 (1) of the municipal order because of the lack of competence of the municipality council under the provisions of Paragraph 99 (1) of the Municipality Act, the Municipality considers that the Municipality Council is entitled to decide to amend any regulation issued to it. The content of such a regulation may be such as to amend the construction closure regulation, which corresponds from a point of view to the concept of "exemption from restrictions'. Any person, such as a potential builder, may initiate such a regulation. The municipality admitted that the wording contained in Article 3 (3) of the Regulation is inaccurate, since the amendment of the Regulation and, therefore, de facto, the exemption can only be granted in the manner described (by approving the new municipal regulation) and not, for example, by means of administrative decisions. In view of the above, as well as the definition of the powers of the Municipality Council in the Municipality Act, the Municipality considers, however, that the provision in question does not need to be abolished, since there is the possibility of its legal and therefore constitutional interpretation (reference to the findings of the Constitutional Court sp. zn. Pl. ÚS 15 / 98, ECR 13, Volume 13, Found No 48; published under No 83 / 1999 Coll., or sp. zn.
15. In addition to the statement by the Minister of Interior, the Municipality of Polovice pointed out that, contrary to the "legal assessment by the Municipality of Pozlovice No 2 / 2004 on the construction closure 'and the opinion of the Ministry of Regional Development of 22 July 2005 No 21813 / 05-63 / 1527, the Minister of Interior does not argue in the proposal submitted by the Constitutional Court, in the alleged contradiction of the regulation with the objectives and intentions of the zoning plan, expressed in the Zlín Gorgomonica's Zlín Gorgomonica's territorial plan, namely in this territorial plan, contained corridors of the new VN management. The municipality pointed out that in no way does the regulation make it impossible for these lines to be carried out (it does not), only the conditions for their construction are laid down to protect the development of its territory. The veracity of the action taken by the Municipality of Polovice in relation to the protection of the landscape against the construction of such lines, if they do not comply with the requirements laid down in the Municipality Regulation, is also supported by the decision of the CHKO White Carpathians Administration of 30 August 2005 No BK / 1526 / 2003 / RozeII, which was confirmed by the Ministry of the Environment Decision of 21 March 2006 No 570 / 2703 / 05 / 06-Do. These decisions and the documents cited therein also show that there are technically feasible variants of energy lines which comply with the restrictions contained in the municipal regulation and the corridor defined in the Zlin agglomeration VÚC.
16. The Municipality of Polovice expressed its belief that the contested Regulation No 2 / 2004 was issued in the legal manner and in the legally required form, within the limits of the legal scope and in accordance with the purpose for which it was entrusted (the Constitutional Court's finding sp. zn. It made a proposal that the Constitutional Court reject the proposal by the Minister of the Interior to suspend the contested regulation.
17. According to Article 69 (2) of the Law on the Constitutional Court, the application was also sent to the Ombudsman, but he informed the Constitutional Court that he had not entered the proceedings; Therefore, it did not become an intervener.
18. The oral hearing in the case did not take place in the light of the agreement of both the parties and the intervener with the abandonment (Paragraph 44 (2) of the Constitutional Court Act).
Derogation of the contested legislation (including typing inaccuracies)
"COMMUNITY REGULATION No 2 / 2004 ON CONSTRUCTION CONCLUSIONS
Town Council Polovice issues pursuant to § 33 (3) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations, as amended, and pursuant to § 11 (1) and (102) (2) (d) of Act No. 128 / 2000 Coll., on Municipality as amended, and on the basis of its Resolution No. 174 / 2004 of 30 June 2004, this Regulation:
Preliminary provisions
1. The regulation sets the scope of the building closures in the cadastral territory of Pozlovice, the municipality of Pozlovice.
2. The purpose of the building closure is to protect the territory from the location and implementation of structures that significantly disturb the landscape, to create conditions for the sustainable development of the territory, in particular the development of spa and tourism in the area of concentrated recreation.
Definition of the territory
The construction closure is affected by the following properties in K. Ú. and the Municipality of Pozlovice parc. no. PK:
1, 15 / 15 / 1, 13 / 15 / 1, 13 / 13 / 1, 11 / 15 / 1, 11 / 15 / 1, 11 / 13 / 1, 11 / 15 / 1, 11 / 13 / 1, 11 / 13 / 1, 11 / 13 / 1, 11 / 13 / 1, 11 / 13 / 1, 11 / 13 / 1, 13 / 1, 11 / 1, 11 / 1, 11 / 2, 967 / 1, 967 / 1, 1011 / 8, 1005, 1006, 1009 / 2, 1003, 998, 995, 987 / 2, 985 / 1, 1088 / 1, 2158, 2157, 2136, 2135, 2132, 2137, 2102, 2100, 2174, 2105, 2096, 2093, 2092, 2091, 2090, 2176, 2045, 2047 / 1, 2026, 2022 / 1, 2021, 2021, 2015, 2015, 2011, 2011, 2011, 2011, 2011, 2011, 2011, 2011, 2011 / 20 / 20 / 01, 13, 13 / 20 / 01, 11, 11,
Scope of prohibition or limitation of construction activity
1. In the above-defined territory, the implementation of energy management structures is restricted by landscape-distorting technologies. Such structures may be located in the abovementioned territory only if the following conditions are met:
(a) on wooded land the supporting points of the energy line shall not exceed 15 m
b) in the open landscape the buildings of the power line are placed underground
2. The construction closure shall not be prohibited or restricted to the implementation of maintenance work.
3. An exemption from the limits referred to in paragraph 1 may, where justified, be granted by the Council of the Municipality of Polovice upon request.
Final provisions
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
Repeal
Regulation No 1 / 2004 on construction closure is hereby repealed.
Deputy Mayor
Mayor
round stamp "
Conditions for the applicant's active legitimacy
19. The Constitutional Court first addressed the question of whether the applicant - Minister of the Interior - is entitled to file an application for annulment of the contested provisions. Prima facia came to a positive conclusion. Under Article 64 (2) (g) of the Law on the Constitutional Court, the Minister of the Interior is entitled to make an application for the annulment of another law or its individual provisions under Article 87 (1) (b) of the Constitution, if it is a proposal for the annulment of the municipal law.
20. The proposal by the Minister for the Interior was preceded by a procedure for supervision under Title VI of the Municipality Act. On 15 February 2005, the Regional Authority of the Zlín Region called on the Municipality of Pozlovice under No 3165 / 2005 / LPO-Kr to remedy. In particular, the Regional Authority found, contrary to the law, provisions regulating the scope of the ban or restriction on construction activities. As the party to the proceedings at the request of the Regional Office failed to remedy, on 11 May 2005 the Regional Office submitted a proposal to the Ministry of the Interior to suspend the regulation.
21. On the basis of the documents submitted, the Ministry of the Interior concluded that the contested regulation was contrary to the law and, therefore, by measure of 25 August 2005 No. the notice of initiation was notified to the municipality on 29 August 2005. Since the Municipality of Pozlovice had not dealt with a remedy, the Ministry of the Interior suspended the effectiveness of the Municipality Regulation by Decision No 977-5 / 1-2005 of 20 February 2006; the decision was notified to the municipal authority on 23 February 2006 and became final on that date. In accordance with Articles 124 (3) and 127 (1) of the Municipality Act, the Minister of the Interior was to submit an application for its annulment to the Constitutional Court no later than 15 days after the suspension of the municipal order. The deadline under this provision expired on 10 March 2006, the Minister of the Interior submitted the relevant proposal in due time, as on 10 March 2006 the consignment was submitted for postal transport and the application was served on 13 March 2006 at the Constitutional Court.
22. Therefore, the application for annulment of the municipal order in question was submitted by an authorised person pursuant to § 124 (3) and § 127 (1) of the Municipality Act and § 64 (2) (g) of the Constitutional Court Act.
Constitutional and legal conformity of the legislative process
23. In accordance with Article 68 (2) of the Law on the Constitutional Court, when deciding on the content of a law or other law, the Constitutional Court assesses the content of a law or other law in terms of its compliance with the constitutional laws and, in the case of any other legislation, the laws are also applicable, and ascertains whether or not they have been adopted and issued within the limits of the constitutional competence and in the constitutionally prescribed manner. Articles 79 (3) and 104 In doing so, the Constitution entrusts legal regulation to the procedure for the legislature of the municipality.
24. In this respect, the Constitutional Court found that five members of the Council were present at the meeting and that the contested regulation was approved unanimously. Since the Municipality Council had at that time five members, all of which were present, it can be concluded that the contested regulation was adopted in a qualified manner (Section 101 (2) of the Municipality Act). Furthermore, the Constitutional Court found that the contested regulation was properly posted on the Oce of the Municipal Office of Pozlovice on 2 July 2004 and removed on 20 July 2004, so that it became effective on 2 July 2004 (Section 12 (2) of the Municipality Act). The Constitutional Court notes that the contested legislation was adopted and issued in accordance with the Municipality Act, i.e. in a constitutional manner.
Evaluation of the Constitutional Court
25. After that, the Constitutional Court was already able to address the substance of the case, i.e. to examine whether or not the content of the contested regulation was in accordance with the municipality law in force and whether it was entitled to repeal the municipality's legislation on non-compliance with another legislation.
26. The Constitutional Court notes that, pursuant to Article 87 (1) (b) of the Constitution, it has the power to decide on the repeal of other legislation or its individual provisions if they are contrary to constitutional order or law.
27. As regards legislation issued by local authorities (municipalities and counties), it is necessary to further distinguish whether it is the exercise of state administration or whether the legislation is an expression of the constitutional right to local authorities. The Constitution in Article 105 allows the law to entrust the authorities of the local authorities and the exercise of the state administration; the municipality then carries out the so-called "delegation '. Article 79 (3) of the Constitution is based on the authority of the municipality to issue legislation in the sphere of delegation. According to Article 11 (1) of the Municipality Act, the municipality does so in the form of a municipal order. According to Article 61 (2) (a) of the Municipality Act, the municipality is governed by laws and other legislation, which implies that the municipal order must comply with the laws and other legislation. In addition, the power to issue legislation in the sphere of competence separate in the form of generally binding decrees is based on other provisions of the Constitution, Article 104 (3) (cf. also the finding of the Constitutional Court sp. zl. ÚS 29 / 95, Reports of decisions, Volume 4, Found No 85, p. 301; published under No 14 / 1996 Coll.). According to Article 35 (3) (a) of the Municipality Law, the municipality is governed by law and no longer by other legislation when issuing generally binding decrees. The so-called reservation of the law (Article 104 (1) of the Constitution) applies in the field of separate competence: the separate competence of municipalities and regions can thus be regulated in a constitutional manner by a law which has at least the power of the law, not by a lower legal power standard.
28. It follows from this clear conclusion to the Constitutional Court that it could not be responsible for assessing the conformity of a generally binding order of the municipality with a provision which has a lower legal force than the law and could not cancel a general binding decree for any discrepancy with the statutory legislation.
29. In the present case, it is the exercise of the delegation of the municipality, i.e. the state administration, and the municipality must therefore be strictly within the limits of the relevant legislation, since according to Article 2 (3): The Constitution may be applied only in cases, within the limits and in the ways laid down by law. However, the contested legislation is the municipal order (1). According to the appellant, the contested order of the municipality is contrary to § 33 (3) of the Building Act and § 7 of the Implementing Decree implementing certain provisions of the Building Act. According to the wording of § 33 (3) of the Building Act, "the municipality and the region may declare a protected area or a building closure by order of the Municipality or by order of the Region." The municipality's order on the building closure must respect the requirements for the content definition of the building closure, as the regulation issued under the statutory authorisation of § 33 (3) of the building law is to be regarded as a type of zoning decision under the building law.
30. Paragraph 32 (1) (d) of the Construction Act and Section 7 of the Implementing Decree show that the purpose of the Institute of Construction closures is to protect important interests in the territory or future use of the territory or its organisation according to the planned planning documentation. This basic definition, as well as the modification of the requirements of the zoning decision on the construction closure provided for in § 7 of the Implementing Decree and hence the limits on the permissible content of the building closure, must be based, in the view of the municipality, on the construction closure in the form of a municipal regulation pursuant to § 33 (3) of the Construction Act, since no legislation contains special provisions in this regard. In addition, reference can be made to the finding of the Constitutional Court in the case sp. zn.
(31) Article 1 (2) of that Regulation, as contested by the proposal, provides that the purpose of the construction closure is to protect the territory from the location and implementation of structures which significantly disturb the landscape, to create conditions for the sustainable development of the territory, in particular the development of the spa and tourism in the area of concentrated recreation. This purpose of the Regulation does not in any way deviate from the limits laid down in § 32 (1) (d) of the Construction Act and § 7 of the Implementing Decree. It is based on the text of the current Zoning Plan of the Municipality of Polovice, according to which only such structures, facilities and facilities which do not violate the spa climate, vegetation, hydrological conditions, calmness and aesthetic appearance of the spa site (Article III, measures relating to the construction of the spa site, point 8, p. 35 of the text part of the zoning plan) may be allowed. In its Resolution No 21 / 1 / 2005 / ZO of 10 February 2005, the Municipality of Pozlovice approved the intention to acquire a new zoning plan for the Zálovice local department, which aims, inter alia, to improve the conditions of protection of the landscape character and thus the recreational potential of the municipality in terms of the content of the construction closure in question. The construction closure regulation therefore limits the construction activity which could prevent the future use of the territory or its organisation in accordance with the planned planning documentation, which is fully in line with the definition of the objective of the prohibition or restriction of activity through the Institute of Construction closures pursuant to § 7 of the Implementing Decree.
32. In its proposal, the appellant, like the Ministry in the decision to suspend the application of the municipal order, oversees that the territorial decision on the location of the construction, the elements of which are defined in the provisions of Section 4 of the Implementing Decree, always lays down the conditions for the location of a very specific individual construction as defined in the proposal for a territorial decision, which must contain all the information referred to in Section 3 of the Implementing Decree. On the other hand, the municipal zoning decision or regulation on the construction closure provides for general restrictions or prohibitions concerning a type of possible future construction activity in the territory. This is also the case with the municipal order in question. This Regulation does not lay down the conditions for the placement of any specific construction, but defines as a general binding municipal law, issued under the statutory authority provided for in Paragraph 33 (3) of the Building Act, general binding rules for the case of a type of future construction activity in a defined territory.
33. The Constitutional Court states that the Municipality may, under the law and within its limits, issue the Order of the Municipality under the provisions of Paragraph 11 (1) of the Municipality Act, if it is empowered by law to do so. According to Section 61 (2) of the Municipality Act, the municipality is governed by laws and other legislation, including municipal legislation, i.e. generally binding regulations and regulations. When issuing regulations, they shall respect the limits of legal authorisation. These legal limits need to be derived from the construction law and other specific legislation relevant to the issue in question. The decision or regulation on the construction closure must specify in detail and precisely the scope of the restriction or prohibition on the construction activity; This conclusion is based on the fact that the municipal building closure regulation is a specific type of zoning decision envisaged by the construction legislation and it also implies that the requirements for the content of the regulation need to be derived not only from the provisions of the legislation governing the building closure decisions, but also from the overall context of the zoning legislation which defines and distinguishes the different types of zoning decisions.
34. However, the Constitutional Court concluded that the contested Decree of the Municipality of Polovice No 2 / 2004 on the construction closure [Article 3 (1) (a) and (b)] is therefore not contrary to § 33 (3) of the Building Act and § 7 of the Implementing Decree. The Constitutional Court must attest to the Municipality of Pozlovice that the construction closure declared by the regulation does not deviate from the objectives and objectives of the zoning plan. It would be a denial of the meaning of the construction closure if it had to be defined in the same way in the zoning plan. The construction closure may even be established for the territory in which the zoning plan permits construction, e.g. as a temporary measure until the approval of a more detailed zoning dossier for the territory concerned. There is therefore no relationship between the regulation on the building closure and the generally binding decree of the municipality between the legislation of the lower legal force and the law of the higher legal force. The methods of legal regulation in both cases are not identical. When announcing the building closure, it is necessary to examine whether the construction closure will stand in the light of the objectives and objectives of the zoning plan. The assessment of compliance with the objectives and objectives of spatial planning in a given territory shall not be exhausted by issuing a territorial decision. This consistency should continue to be assessed when deciding on lower levels of abstraction. For example, when deciding on the issue of a building permit for a specific construction, the construction office must consider whether such a construction can be authorised in view of the objectives, objectives and documentation of the spatial planning, i.e. also in view of the generally binding decree approved by the zoning plan.
35. The Constitutional Court has decided in part to comply with the proposal of the Minister of the Interior and to abolish the contested provision of Article 3 (3) of the Municipality's Dispute Order with Article 79 (3) of the Constitution under which municipalities may issue regulations only if they are expressly empowered by law and within the limits of such law. Without specific authorisation in the law, the municipality cannot issue a Delegated Regulation. The publication of the order of the municipality is entrusted to the council of the municipality and according to § 102 (2) (d) of the Municipality Act it is a reserved competence. Article 3 (3) of the Municipality Regulation provides that an exemption from the restrictions referred to in paragraph 1 may, where justified, be granted at the request of the Municipality of Polovice. The Constitutional Court agrees with the appellant that the powers of the Council go beyond Paragraph 99 (1) of the Municipality Act, since under that provision in the field of delegation it is for the Community Council to decide only if the law so provides. The Constitutional Court finds that, by order of the municipality in Article 3 (3), the municipality inadvertently extended its authorisation. In addition, in the present case, it is the exercise of the delegation of the municipality, i.e. the state administration, and the municipality should therefore have been within the limits of the relevant legislation, since according to Article 2 (3), The Constitution may be applied only in cases, within the limits and in the ways laid down by law. For this reason, the provision cited in the regulation is also contrary to the law and the Constitutional Court decided to repeal Article 3 (3) of the Pozlovice Municipality Regulation No 2 / 2004 on the publication of building closures for the part of the cadastral territory of Pozlovice on the date of the publication of a finding in the Collection of Laws.
36. The alleged formal deficiencies in the proceedings raised by the municipality As a party to the proceedings against the appellant, Pozlovice cannot justify the conclusion on the illegality of the contested procedure and the decision as they do not reach a constitutional level; for these reasons, the Constitutional Court did not examine them further.
37. The Constitutional Court therefore finds that the contested regulation in the other parts is not contrary to § 33 (3) of the Building Act, § 7 of the Implementing Decree or Article 2 (3) of the Constitution. After the procedure, the Constitutional Court therefore concludes that there are no grounds for the annulment of the Decree of the Municipality of Pozlovice No 2 / 2004 on the publication of building closures for the part of the cadastral territory of Pozlovice, and therefore rejected the proposal by virtue of Article 70 (2) of the Law on the Constitutional Court and annulled by virtue of Article 70 (1) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
1) The Act empowers the municipality and the county to publish building closures by order of the municipality or by order of the county, i.e. in the form of a legal act (§ 33 (3) of the Building Act). Otherwise, the building closure is a territorial decision given in the territorial proceedings by the competent building office pursuant to § 32 et seq. of the Building Act. Should the construction closure take the form of a territorial decision, it shall be reviewed in administrative proceedings and subsequently by judicial authority. However, if the building closure takes the form of a legal act, persons whose property or other rights to land or buildings may be directly affected by the building closure, they shall have a significantly more difficult option to oppose such interference in their rights. The Constitutional Court notes, on the other hand, that Article 33 (3) of the Building Act cannot be dealt with in this procedure by virtue of its constitutionality, since that provision was not contested.
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Regulation Information
| Citation | The Constitutional Court found No 475 / 2006 Coll., on the application for annulment of the Order of the Municipality of Pozlovice No 2 / 2004 on the building closure |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.10.2006 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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