The Constitutional Court found no 90 / 2005 Coll.
The Constitutional Court found of 25 January 2005 on the application for annulment of the Decree of the Municipality of Lipník No 1 / 2003 on the publication of building closures for part of the cadastral territory of Lipník
Valid
90
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 25 January 2005 in plenary composed of JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiř. Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner and JUDr. Michaela Židlická on the proposal of the Minister of the Interior of Mgr. Stanislav Grosse on the annulment of the Decree of the Municipality of Lipník No 1 / 2003 on the publication of the building closure for part of the Catastrostral Territory Lipnik
as follows:
Motion denied.
Reasons
Recital of the proposal
By proposal pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), § 64 (2) (g) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and pursuant to § 124 (3) of the Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended, delivered to the Constitutional Court on 13 February 2004 (submitted for postal transport on 12 February 2004), the then Minister of Interior Mgr. Stanislav Gross (hereinafter referred to as "the appellant") is abrogatory, according to which the Decree Lipník Municipality No 1 / 2003 on the publication of the building closure for part of the cadastral territory of Lipník on the day of the Declaration of the Law.
The appellant noted that the contested regulation was approved by the order of the Municipality of Lipnik on 28 February 2003 and that all the legally prescribed conditions for its validity and effectiveness were fulfilled. The Regional Authority of the Central Bohemian Region made a call of 9 May 2003 No 3419 / 03 to the Municipality of Lipník for a remedy. The Ministry of the Interior concluded that the contested regulation was contrary to the law and therefore, by measure of 10 November 2003, MS-1999 / 5 / 1-2003, the administrative procedure for suspending it had been initiated. Since the Municipality of Lipník had not remedied, the Ministry of the Interior suspended the effectiveness of the Municipality Regulation by Decision No MS- 1999 / 2- 2003 of 13 January 2004.
The appellant stated that, pursuant to Article 61 (2) of the Municipality Act, the municipality is governed by laws and other legislation, including the municipal legislation, i.e. generally binding regulations and regulations, when issuing the municipal order. According to the appellant, it follows that the order of the municipality must be in line with the other legislation already issued by the municipality. The municipality of Lipník, by the contested regulation, has announced a permanent construction closure to a part of the municipality's territory, the part of which is already covered by the generally binding Decree of 20 November 2001 on the binding parts of the town of Lipník's territorial plan, hereinafter referred to as the "municipal decree ', which provides for mandatory regulations for the functional use and spatial layout of the municipality of Lipník. The municipal decree regulates the part of the territory concerned in Article 3 (9) by excluding construction in this area except for taxiously defined buildings. By the contested regulation, the municipality declares a permanent building closure in the same part of the territory, which defines construction activities in the area prohibited in Article 1 (a) and allows for unambiguously worded exceptions, that is to say it allows for the placing in the territory of different types of buildings than the municipal decree. The same territory is regulated by two municipal legislation, whereby the contested municipal regulation regulates the construction activity in contravention of the municipal decree, in Article 1 (a) (1), in which it allows, in addition to the municipal decree, the construction of small-scale special-purpose buildings and facilities for forestry, agriculture, nature conservation or recreation which do not disturb or otherwise undermine the territory. On the contrary, Article 1 (a) (2) reduces the possibility of the implementation of liner structures outside cycle paths; the technical infrastructure structures are completely launched and the construction of fences set up to protect forest areas against game is allowed in Article 1 (a) (4).
According to the appellant, the building closure declared by the municipality pursuant to § 33 (3) of Act No. 50 / 1976 Coll., on the zoning and construction rules (construction law), as amended, must be in the form of a municipal decree in accordance with the provisions of the construction law governing the construction closure issued by the municipal authority in the form of a zoning decision. According to the appellant, by regulating the construction activity in part of the municipality's territory differently from the municipal decree, Sections 10, 39 and 37 (1) and (2) of the Building Act were infringed, which implies an obligation to ensure that the building closures are consistent with the objectives, objectives and documentation of the zoning.
According to the appellant, the alleged non-compliance cannot be bridged by interpretation. For example, in applying the lex posterior derogat priori principle, the municipality's regulation would have preferred to apply, which would essentially mean a negative for the long-term and relatively difficult process of procuring land planning documentation. Moreover, according to the appellant, it is questionable whether this interpretation method can be applied to legislation which, although issued by the same body (municipality), is of a completely different nature (generally binding decrees are issued under separate jurisdiction within the meaning of Article 104 (3) of the Constitution, of the Delegated Regulation).
According to the appellant, the contested regulation, contrary to § 40 (2) of the Building Act, also provides for a permanent closure. The building law does not allow the building closure to be permanent in the form of a zoning decision, nor can it be established as such in the case of a building closure issued by a municipal order; the municipality's decree cannot impose more obligations or restrictions as a derivative legislation than the building law allows in the case of a zoning decision on a building closure.
The appellant also referred to the expert opinion of the Ministry of Local Development dated 7 January 2004 No 25610 / 03-63 / 2274, which was requested by the Ministry of Interior. It also follows from that opinion, inter alia, that the adoption of the contested regulation infringed the provisions of Sections 29, 32 and 37 of the Construction Act and of Article 3 (1) and (9) of the Municipal Order.
Procedure and recap of the observations of the parties
According to Section 69 (1) of the Constitutional Court Act, the application was sent to a party. In its observations of 22 March 2004, the municipality of Lipník, by its mayor, L. D., expressed a request that the Constitutional Court reject the application.
First, the municipality of Lipnik 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 28 February 2003. In order to proceed with the Regional Authority of the Central Bohemian Region, the municipality stated that, in its view, it was motivated not by an interest in the proper performance of the delegation, but by its efforts to place in the territory of the existing biocentre the "supra-local 'importance of the Mladá large development area (as the purchaser of the change of the VÚC Mladá zoning Plan), despite the opposition of the municipalities concerned, including in the territory where the building closure was declared.
The municipality of Lipnik expressed the belief that the contested regulation was in line with the construction law and other legislation and with the objectives and tasks pursued by it.
As regards the alleged infringement of the contested Regulation with Article 3 (9) of the municipal order, the Municipality of Lipnik stated that the contested regulation was in line with the provision cited in the municipal order. The municipal decree prohibits construction with the exception of line construction, construction for technical infrastructure and construction necessary for the management of forest and agricultural land funds. The contested regulation prohibits construction with the exception of cycle paths (line construction), non-disrupting installations and the value of landscapes and small purpose structures - these structures and facilities according to the municipality are related to the use of forest and agricultural land funds and to the construction of the necessary infrastructure for this purpose. In order to protect public interests in the territory, the definition of the construction closure in the contested regulation is expressed more precisely than is the case in the territorial planning documentation, since it addresses the use of the territory at a different level of detail. The contested regulation was therefore specified and specified for the exceptional territory (in terms of its natural sciences, landscape and aesthetic values and recreational potential) by the general regulation on binding parts of the zoning plan. The regulation is logically more precise as it concerns only the specified territory, whereas the municipal decree concerns the whole of the unurbanised territory or the urbanisation of the undetermined territorial plan of the urban area of the municipality.
The adoption of the interpretation of the Regional Office of the Central Bohemian Region and the Ministry of Interior that the building closure and the zoning plan must be equal, according to the municipality Lipnik the possibility of establishing a building closure for a particular territory would be no longer relevant. An unacceptable contradiction would occur, for example, when a building closure would be declared permanently for a standstill area (Section 139a (3) of the Building Act), and this is not the case here.
The Municipality of Lipnik has identified the applicant's reference to the procurement process of the land planning documentation as being of no legal importance since it is intended to ensure that the land planning documentation approved in its own competence can be examined by the authorities concerned in terms of compliance with the interests protected by specific legislation. However, in the case of the municipality's order, it is exclusively the exercise of state administration (delegation).
In the case of the Order on the binding parts of the zoning plan and in the case of the municipal decree on the publication of building closures, the legislation of the same legal force is in force according to the municipality Lipník, so even if one of them defines the limits on the use of the land in the site more strictly, it does not result in the annulment (defect) of one of them; the conditions of the two provisions must, of course, be fulfilled when using the territory in question. The two rules of the municipality are not in conflict in this case, but are complementary. The fact that a territory is addressed by a territorial plan does not in any way preclude the possibility of establishing a building closure for that territory and of setting stricter conditions for activities in that territory.
In this context, the municipality took the view that the procedure laid down in Section 127 (1) (124) of the Municipality Act could be applied only if the Municipality Regulation was contrary to the law (not to another law - the Ministerial Decree, a generally binding order from the Municipality or Region). Thus, even if the contested regulation were to be contrary to the municipal order, it was issued in accordance with § 79 (3) of the Constitution and § 11 (1) of the Municipality Act, i.e. by law and within its limits.
As regards the argument of contradiction with § 40 (2) of the Building Act, the municipality Lipník stated that there was no indication from the Building Act that the announcement of the building closure had to be a temporary measure. On the contrary, pursuant to Paragraph 1 (2) of the Building Act, territorial planning, the construction closure of which is one of the instruments, is to create the preconditions to ensure the continued consistency of all values in the territory. In the territory, the building closure was declared because of its permanent and not transitional nature, landscape and aesthetic value and its recreational potential. The territory is an important landscape with unique natural communities with numerous protected plants and animals. The purpose of the building closures is to maintain and protect these values permanently. In the event that this purpose is abandoned, nothing shall prevent the repeal or amendment of a new municipal order. According to the municipality Lipník § 40 (2) of the Building Act explicitly foresees that the construction closure will be declared without a precise time limit. The word 'permanent' in the municipality's regulation may seem redundant, but it cannot cause it to be illegal.
According to the Municipality of Lipnik, the appellant's assertion that the contested regulation is contrary to the provisions of the construction law is not possible, since the regulation is in accordance with them or does not relate at all to those provisions of the case (§ 10, § 29, § 37 (1) and (2) and § 39 of the construction law). The provision that the territorial planning documentation is the basis for a territorial decision is respected in the present case, as the building closure concerns only the territory defined by the territorial plan as unstoppable.
According to Article 69 (2) of the Law on the Constitutional Court, the application was also sent to the Ombudsman, but he did not inform the Constitutional Court that he was entering the proceedings; Therefore, it did not become an intervener.
By order of the Constitutional Court No Pl. ÚS 9 / 04- 15 of 23 March 2004, the proceedings in the case were suspended on 30 March 2004 due to a decrease in the number of judges of the Constitutional Court to 11. By order of the Constitutional Court No. Pl. ÚS 9 / 04- 19 of 22 June 2004, it was decided to continue the proceedings as the number of judges of the Constitutional Court rose again to 12.
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
"Municipality Regulation No 1 / 2003
on the publication of building closures for part of the cadastral territory of Lipnik
The Municipality of Lipník decided on 28 February 2003 to issue pursuant to § 102 (2) (d) of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), as amended, and § 33 (3) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, this Regulation:
This Regulation declares permanent closure (1) in the territory defined in Article 2 of this Regulation to the following extent:
(a) the following shall be prohibited:
1. place new buildings, except for small-scale special-purpose buildings and facilities for forestry, agriculture, nature conservation or recreation, which do not disturb or otherwise undermine the territory;
2. to build new reinforced communications except cycling paths,
3. to build facilities that would disturb or otherwise degrade the landscape;
4. to build fences with the exception of forest nurseries, fences set up to protect forest areas from animals;
5. build additional equipment or perform landscaping.
(1) The building closure is announced in a territory whose exact boundaries are marked on a map of 1: 10 000 scale, the original of which is stored in the municipal office.
(2) An overview of the land parcels of the territory referred to in paragraph 1 of Article 2 is Annex 1 to this Regulation, its graphical representation being Annex 2 to this Regulation.
This Regulation shall enter into force on 15.3.2003.
1) Paragraph 33 (3) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended.
Příloha 1
Annex 1
Ordinance No 1 / 2003 of 28 February 2003 on the publication of building closures for the part of the cadastral territory of Lipnik
Description of the boundaries of the territory where the building closure is declared
1. Location designation
Region: Central Bohemian
Municipality: Lipplant
Catastral territory: Lipník
2. Border of territory
The whole plot of land is 5034, 5038 / 1, 5038 / 2, 5039, 5040, 5041, 5042, 5053, 5054, 5055, 5056, 5072, 5073, 5074, 5075 and 5076, which are part of the regional biocenter Mladá. '
According to the explanatory memorandum to the contested municipal regulation, the purpose of the construction closure is to maintain and permanently protect the defined parts of the territory for their natural, landscape and aesthetic values, to enable their use for recreation and for the education of citizens, and to contribute overall to improving the environment of the region and its recreational potential. The area of the construction closure thus represents a specific large-scale protection of the preserved landscape of the former Milovice- Young military escape. The building closure includes the original military training ground, the area of the former village Mladá and part of the surrounding forest areas in the regional biocenter Mladá and listed in the valid UC Mladá (1994) as a site of increased nature conservation interest. Category VKP - unique brighter birch groves, rare gerbilical communities.
Conditions for the applicant's active legitimacy
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.
The proposal by the Minister for the Interior was preceded by a procedure for supervision under Title VI of the Municipality Act. The Regional Authority of the Central Bohemian Region called on the Municipality of Lipník no. 3419 / 03 on 9 May 2003 for a remedy; the invitation was received by the municipality on 14 May 2003. The Ministry of the Interior concluded that the contested regulation was contrary to the law and therefore, by measure of 10 November 2003, MS-1999 / 5 / 1-2003, the administrative procedure for suspending its effectiveness was initiated. the notice of initiation was notified to the municipality on 10 November 2003. Since the Municipality of Lipník had not remedied, the Ministry of the Interior suspended the effectiveness of the Municipality Regulation by Decision No MS-1999 / 2- 2003 of 13 January 2004; the decision was notified to the municipal authority on 21 January 2004 and became final on that date. In accordance with Section 124 (3) of the Municipality Act, the Minister of the Interior was to submit a general binding order of the municipality to the Constitutional Court no later than 15 days after the suspension of the validity. The deadline under this provision expired on 5 February 2004, but the Minister of the Interior did not make the relevant proposal until 12 February 2004 when he submitted it for postal transport.
The Constitutional Court notes that, from the perspective of the Constitutional Court Act, the period under Section 124 (3) of the Municipality Act must be regarded as an order period, the failure of which does not result in the rejection of the application for reasons under Section 43 (1) (b) or (c) of the Constitutional Court Act. The Law on the Constitutional Court does not bind the active legitimacy of the Minister of the Interior to further conditions in Paragraph 64 (2) (g).
However, it does not appear from this conclusion that, from the point of view of the Municipality Act, it is also an order period in § 124 (3), with which there are no other consequences. This is a very important deadline. The Minister of the Interior has a completely exceptional power to suspend the legislation of the municipality before contacting the Constitutional Court with a motion for its annulment. In the area of the so-called autonomous competence of the municipality, it is undoubtedly a fundamental intervention in the constitutional right to territorial autonomy. If the Minister of the Interior had remained dormant after suspending the legislation of the municipality, this would have led to a de facto repeal of the legislation, as its effectiveness would have been permanently suspended. The purpose of the provisions of the first sentence of Paragraph 124 (3) is to avoid a non-constitutional situation in which an executive body has a significant impact on the constitutional law of a local authority without having been subject to judicial control from the point of view of constitutionality. Since the local authority does not have the right to force the Minister of the Interior to implement his design authorisation within the prescribed time limit and the Municipality Act does not deal with the consequences of inaction by the Minister of the Interior, the constitutional conformal interpretation of the situation arises by renewing the effectiveness of the municipal legislation by the expired deadline under Paragraph 124 (3) of the Municipality Act.
This consequence, in the light of Article 127 (1) of the Municipality Act, also prosecutes the municipality regulation, i.e. the legislation issued under the delegation. However, the hearing and decision of the Constitutional Court on the proposal of the Minister of the Interior for the annulment of the contested regulation of the municipality of Lipnik has no influence if the contested regulation is effective or not (cf. Section 66 (1) of the Constitutional Court Act).
Constitutional and legal conformity of the legislative process
Under Article 68 (2) of the Law on the Constitutional Court, when deciding on the content of a law or other legislation, the Constitutional Court assesses the content of the law or other legislation in terms of its compliance with the constitutional laws and, in the case of 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.
In this regard, the Constitutional Court found from the minutes of the public meeting of the municipal council held on 28 February 2003 in Lipnik that 8 members of the council were present at the meeting and that the contested regulation was approved unanimously. Since the municipality's representative had at that time nine members, one of whom was not present, it can be concluded that the contested regulation was adopted in a qualified manner (Sections 92 (3) and 87 of the Municipality Act); in the municipality Lipník, under § 99 (3) of the Municipality Act, the Municipality Council is not elected and therefore under § 84 (3) of the Municipality Act the Municipality Order is issued by the Municipality Council. Furthermore, the Constitutional Court found that the contested regulation was properly posted on the official plate of the Municipal Office of Lipnik on 28 February 2003 and removed on 24 March 2003, so that it became effective on 15 March 2003 (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
According to the appellant, the Constitutional Court is to abolish the contested municipal order because it is contrary to Article 3 (9) of the generally binding Decree of the Municipality of Lipník of 20 November 2001 on the binding parts of the zoning plan of the Lipník, which contravenes § 10, § 39 and § 37 (1) and (2) of the Building Act, which implies an obligation to ensure its compliance with the objectives, intentions and documentation of the zoning plan when issuing the building closure. In addition, according to the appellant, the contested regulation is also contrary to Paragraph 40 (2) of the Building Act, which shows that the construction closure cannot be established as permanent.
The Constitutional Court had first to address the question whether it was entitled to assess the compliance of the municipality's legislation with another municipality's legislation and whether it was entitled to abolish the municipality's legislation on non-compliance with another municipality's legislation. In the present case, the situation is, moreover, more complex by the fact that there is a contradiction between the municipal order and the generally binding decree of the same municipality.
The Constitutional Court notes that, pursuant to Article 87 (1) (b) of the Constitution, it has jurisdiction to decide on the repeal of other legislation or its individual provisions if they are contrary to the constitutional order or the law. The Constitutional Court therefore has the power to abolish legislation of a lower legal force than the law, but only for its contradiction with constitutional order or law. The Constitution does not confer on the Constitutional Court the power to abolish under-legal legislation of a lower legal force for a conflict with the laws of a higher legal force or even for a conflict with a substatutory law of the same legal force. The Constitutional Court is therefore not a universal guardian of the compliance of a hierarchically built rule of law at all stages of the rule of law. In our constitutional system, the conflict of laws between different or the same legal force is particularly possible in the level of specific control of standards in their application within the meaning of Article 95 (1) of the Constitution. According to that article, although the judge of the general court is also expressly entitled to assess the compliance of another law only with the law or with an international agreement forming part of the law, it follows from the first sentence of that provision that it is not bound by a statutory law. If the rule of law is to be applied in its entirety, to find the law in its unity, it must logically be able and entitled to assess the compliance of the law of a lesser legal force with the law of a higher legal force and, as a result of its assessment, not to apply the contested law to the case with reference to the standard interpretation principle lex superior derogat legi inferior inferior.
In other words, one thing is the hierarchical construction of the rule of law, for whose internal unity and coherence it is necessary that the lower legal force standard be consistent with the higher legal force standard, the other is to define the power of a defective legal standard from the rule of law by an authoritarian statement. Whereas the Constitution confers on each court the power to assess the compliance of the statutory or statutory legislation of a lesser legal force with the statutory law of a higher legal force and, in the event of a finding of a discrepancy, not to apply the defective rule in a particular case, the power by an authoritarian statement to abolish another law confers on the Constitutional Court only in the event of a breach of constitutional order or law.
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. zn. Pl. ÚS 29 / 95, Collection of finds and resolutions of the Constitutional Court, 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.
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.
However, the contested legislation is the citizens' regulation (1). According to the appellant, the contested order of the municipality is contrary to § 10, § 39 and § 37 (1) and (2) of the Building Act because it is contrary to Article 3 (9) of the Ordinance of the Municipality of Lipník on the binding parts of the zoning plan of the Lipník Regional Service of 20 November 2001 issued by the Municipality Council under § 84 (2) (b) of the Municipality Act and under § 29 (2) of the Building Act (2). Article 3 of this municipal decree, as its title, contains binding regulations on the functional use and spatial layout of the territory. Paragraph 9 then states that "other territories for which special regulations are not processed are landscape areas. In this area, construction is excluded, except for line construction, construction for technical infrastructure and construction necessary for the management of forest and agricultural land funds."
In the case of delegation, the reservation of law does not apply, so that the law may entrust the matter to the legislation of a lower legal force and may also regulate the relationship between them. If the law provides that the municipal building closure order must be in line with the objectives, objectives and documentation of the zoning plan, then it has a clear definition of its content. If the municipality's construction closure order does not comply with the objectives, intentions and documentation of the spatial planning, it will conflict not only with a specific general binding decree of the municipality, but also with the law that commands compliance with the objectives, intentions and documentation of the spatial planning according to the generally binding decree. The Constitutional Court is therefore competent to assess the compliance of the contested municipal regulation with Article 9 (3) of the Ordinary Decree on the binding parts of the zoning plan.
However, the Constitutional Court concludes that the contested regulation does not conflict with Article 9 (3) of the municipal order, which is to say, by virtue of Articles 10, 37 (1) and (2) and 39 of the construction law. The Constitutional Court must attest to the Municipality of Lipník that the construction closure declared by the Decree does not deviate from the objectives and intentions of the zoning. It is logical that the definition of the construction closure may be more detailed as the municipality's regulation only concerns the specified territory, whereas Article 3 (9) of the Decree concerns the entire unurbanised territory or territory for the urbanisation of an undetermined urban plan of the municipality. The minor wording differences found between the contested Regulation and the generally binding Decree cannot justify the conclusion on the illegality of the contested Regulation. 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 to build a particular building, the construction office must consider whether such a construction can be authorised in the light 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.
According to the appellant, the contested regulation is finally contrary to Paragraph 40 (2) of the Building Act, which, in his view, does not allow construction closures to be established as permanent.
According to Section 40 (2) of the Building Act, "The period of validity of the Decision on... the construction closure is determined by the construction office [or the municipality, if it is designated by the Order of the Municipality (Section 33 (3) of the Building Act). If the validity of the decision cannot be limited in time, the construction office (or municipality) shall decide to terminate the decision if the purpose for which the territorial decision was given ceases. ';
The Constitutional Court agrees with the appellant that the construction closure cannot really be established as permanent if this word is to express its invisibility and irrevocability forever and ever. Of course, that is not the case. The word "permanent closure 'must be understood as a permanent closure.
It is clear from the classification of the provision of Paragraph 40 (2) of the Construction Act that the construction law expressly assumes that the validity of the construction closure will not be limited in time in advance, which in other words means that it will be declared for an indefinite period until it has been properly abolished because the purpose for which it was declared has expired. In the present case, the building closure for part of the cadastral territory Lipnik was declared for an indefinite period in order to protect the nature, landscape and aesthetic values of the territory and improve its recreational potential and environmental quality. If the competent authority of the municipality concludes that this purpose has ceased to exist, it shall not be prevented from cancelling the closure even if it has been designated as permanent.
The Constitutional Court therefore finds that the contested regulation does not contradict § 40 (2) of the Building Act. After the procedure, the Constitutional Court therefore concludes that there are no grounds for the annulment of the Decree of the Municipality of Lipník No 1 / 2003 on the publication of building closures for part of the cadastral territory of Lipník and therefore rejects the proposal in its entirety pursuant to Paragraph 70 (2) 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.
(2) According to Section 35 (2) of the Municipality Act, the municipality's separate competence falls within the competence of the Municipality, in particular the matters referred to in Sections 84, 85 and 102 of the Municipality Act, with the exception of the issuing of municipal regulations. According to § 84 (2) (b), the municipal council is reserved to approve the local plan and the regulatory plan. From the reference back to Section 35 (2) of the Municipality Act, it is clearly concluded that the municipality approves its territorial plan in its separate scope. This is also the case with the form (generally binding decree) and the fact that the territorial development of the municipality is a typical domain of the local authorities. However, in § 13 of the Building Act, the legislature stated that the municipality acquired its territorial plan within the scope of the delegation, in other words, that it carries on the administration of the State and not the local authorities. The practice seeks to bridge the contradiction with an interpretation that the procurement of the zoning plan is subject to delegation, but the very act of its approval is within the separate jurisdiction of the municipality. Nevertheless, such a delineation of the border between the transferred and the separate scope appears to be at the very limit of certainty and clarity of law.
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Regulation Information
| Citation | The Constitutional Court found No 90 / 2005 Coll., on the application for annulment of the Decree of the Municipality of Lipník No 1 / 2003 on the publication of building closures for part of the cadastral territory of Lipník |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.02.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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