Limits of autonomous planning authority

In recent years, a practice has evolved in some municipalities consisting in spatial planning proceedings being handled and local spatial development plans being adopted for selected properties – one or several adjacent plots – to enable or prevent them from being used as the site of specific planned investments.

It seems that the territorial influence of local plans, as local laws, should be broad. However, the Planning and Spatial Development Act does not specify any minimum territorial limits for areas covered by spatial planning proceedings. Some municipal councils believe, therefore, that they are free to limit the territorial scope of spatial planning proceedings to one or several selected properties and thus only determine the development of the areas where specific investment projects are planned by private investors in the near future. Such territorially limited spatial planning proceedings are especially held in places where the local communities, seeking to influence local government authorities, are clearly in favour or against specific investment projects.Investors whose previously planned investments have been successfully blocked by ad-hoc spatial development plans, are asking themselves if the local spatial development plans adopted in this way are legal or, rather than that, constitute cases of unlawful abuse of autonomous spatial planning authority. These concerns usually surface when other similar properties in a particular territorial unit (a precinct or municipality) remain outside any local spatial development plans (any changes to the manner of their development require a decision on development terms to be issued) – therefore, permanent determination of the manner of development of only few selected properties through spatial development plans seems unfounded from the perspective of spatial order. In legal terms, the resolution of such concerns depends on determining the legal limits of the planning authority of the municipal authorities. These matters are governed directly by the provisions of the special act of 27 March 2003 on Spatial Planning and Development, as well as, in an auxiliary manner, by the provisions of other legal acts concerning the matters addressed by the special act.

These are determined by:a) the objectives of spatial planning management set out in statutes – under Article 1 of the Spatial Planning and Development Act, it should serve the purpose of introducing spatial order and fostering sustainable development, which means that local plans cannot be used only to settle individual cases related to particular investments, as this is the purpose served by special proceedings – especially environmental proceedings and those concerning the issuance of decisions on land development terms,b) striking a balance between public and private interests, e.g. on the basis of economic, environmental and social analyses (Article 1(3) of the Spatial Planning and Development Act),c) the obligation to comply with the formal rules and procedure for the drafting of the plan, as set out in the Spatial Planning and Development Act, which should include such elements as: drafting relevant analyses (Article 14(5) of the Spatial Planning and Development Act), ensuring the compliance of the plan with the provisions of the study and separate provisions concerning the area covered by the plan (Article 15(1) and Article 20(1) of the aforementioned act), enabling the public to submit requests concerning the future content and comments about the draft plan, the obligation to duly substantiate the draft plan and a decision on the manner in which comments to the draft plan will be handled (Article 17, Article 18, Article 20(1) of the aforementioned act). Among the above described limitations to the planning authority, special attention should be paid to the requirement to strike a balance between public and private interests, commonly referred to as the proportionality principle (Article 1(3) of the Spatial Planning and Development Act). In the event of a conflict (a clash between private and public interests), compliance with this principle is supposed to protect individual interests and especially legal interests resulting from ownership rights and other freedoms guaranteed to citizens by the constitution, against any abuses by planning authorities justified by public interests. Unfortunately, this principle is sometimes ignored or wrongly interpreted by the planning authorities – in particular, the notion of “public interest” tends to be erroneously treated as synonymous with the subjective views, beliefs or wishes of selected groups of people from the local community, despite the fact that Article 2(4) of the Spatial Planning and Development Act indicates that “public interest” should be understood as:

This means that a spatial development plan may limit the rights of individuals, and in particular the manner in which they may exercise their ownership rights and the right to develop selected properties whose legal title is held by the investor, but only when this is justified by specific needs related to planning management which are at least as important as the rights and interests of individuals or by specific and objective needs of the general public or the local community, resulting e.g. from specific economic, environmental and social analyses. These needs must therefore result from very concrete and fully objective facts and not only from subjective assessments, beliefs or wishes of particular groups in the local community. The abovementioned principle of proportionality is one of the fundamental principles applicable to the drafting of spatial development plans. Therefore, under Article 28 of the Spatial Planning and Development Act, its material violation, just like a material violation of other principles or procedures applicable to the drafting of spatial development plans, fully or partially voids the relevant resolutions of the municipal council. Court jurisprudence also recognizes the importance of the principle of proportionality and the need for planning authorities to comply with it. Non-compliance often results in spatial development plans being declared partially or even fully invalid by administrative courts.

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