Zoning regulation exists so that settlement is arranged in accordance with technical, health and environmental conditions; plans are prepared for that purpose on the basis of Zoning Act No. 3194. Our legislation provides for a hierarchical order among plans, requiring the lower-tier plan to comply with the guiding principles and decisions of the higher-tier plan. In practice, however, plans sometimes display procedural and sometimes substantive unlawfulness; because of the hierarchical link, the fate of the plans beneath a defective plan also becomes contentious. In every case, zoning plans, being administrative acts, may be made the subject of an action for annulment on the ground of unlawfulness.
An action for annulment is brought with a request that an administrative act be removed from the legal order on the ground that it is unlawful in respect of one or more of the elements of competence, form, cause, subject matter and purpose. In actions directed against zoning plans, each of these elements must likewise be addressed separately.
Hierarchy Among Zoning Plans
Zoning plans must be devised through an approach that assesses public needs together with the natural structure of the environment and demographic development, that observes the public interest and that rests on sociological data. Such plans permit interference even with the right of private property, which is under constitutional guarantee, in the name of the public interest. Although there are numerous regulations concerning plans of such importance, the principal legal source is Zoning Act No. 3194.
The plans that form the subject matter of zoning law are divided, in terms of the area they cover and the aim they pursue, into “regional plans” and “zoning plans”. The zoning plans with which we are concerned follow a hierarchical order in the form of the regional plan, the environmental plan, the master zoning plan and the implementation zoning plan.
Within this framework, for an action for annulment to be brought on the ground that the plan was established unlawfully, at least one of the defects examined below must be present in the plan at issue.
Defect in the Element of Competence
Within the boundaries of a metropolitan municipality, the master zoning plan is prepared by the metropolitan municipality and the implementation zoning plan by the district municipalities. In places without metropolitan status, both plans are made within the municipal boundaries by the municipality concerned.
Under Article 9 of the Zoning Act, broad powers are also conferred on central administrative authorities other than municipalities, and in this context on the Ministry of Environment, Urbanisation and Climate Change. For that reason it is important in every case to determine whether the plan was made by the competent authority.
Master zoning plans, provided that they conform to the environmental plan, are made, caused to be made and approved by the metropolitan municipality within metropolitan municipal boundaries at each of the scales between 1/5,000 and 1/25,000.
Implementation zoning plans are prepared by municipalities in places where the Metropolitan Municipality Act applies. However, if the district municipality fails to make the implementation zoning plan and the parcelling plan within one year of the date on which the master zoning plan entered into force, those plans too are made, caused to be made and approved by the metropolitan municipality.
The acts of administrative authorities that prepare a plan by exceeding the limits of their competence constitute the subject matter of an action for annulment before the administrative courts.
Defect in the Element of Form
The preparation, approval and publication of zoning plans must be carried out in accordance with the procedure laid down by the Act. The entry into force of plans is regulated in detail in Article 8: plans acquire force through approval after passing through various stages, but they must also be published following approval.
Defect in the Element of Cause
Where the administration has failed to carry out the preliminary work it was required to complete before preparing the plan, the act is defective in respect of the element of cause. The making of an implementation zoning plan in the absence of a master zoning plan is the typical example of this.
In its decision dated 26.5.2009, docket No. 2007/6847, decision No. 2009/6134, the 6th Chamber of the Council of State likewise held that the making of the implementation zoning plan before the master plan rendered the act unlawful, and that the subsequent making of a master plan would not render the act lawful.
Defect in the Element of Subject Matter
The field in which zoning plans make their consequences most keenly felt is the right of property. Although plans relate to the determination of general use and to function, their implementation may damage individuals’ right of property. At this point regard must be had to the provisions of Protocol No. 1 to the European Convention on Human Rights and to Article 35 of the Constitution.
Defect in the Element of Purpose
As with other administrative acts, zoning plans must serve the public interest. The purpose of plans is determined by planning principles and urbanism principles as well as by the public interest.
Two typical situations reflected in the decisions of the Council of State are cases in which the element of purpose is impaired: the pursuit of personal interests instead of the public interest and the principles of urbanism and planning; and the failure to apply plan notes equally to every building.
Consequences of an Annulment Decision
A decision annulling a plan also produces consequences for acts established on the basis of the earlier plan. Nevertheless, annulment does not of itself automatically set aside the act established in accordance with that plan.
In the decision of the Assembly of Administrative Law Chambers of the Council of State dated 30.09.2015, docket No. 2015/1064, it was concluded that a vested right existed in favour of the owner in respect of the completed part of the building:
“…In zoning matters, in establishing a vested right, the stage the construction has actually reached at the time the judicial decision is given must be taken into account first and foremost. A vested right must be recognised not for the whole of a building permit that was lawful at the moment it was granted, but for the part of the building actually constructed until the stay of execution or annulment decision was given.”
By contrast, in the decision of the Assembly of Administrative Law Chambers of the Council of State dated 12.11.2014, docket No. 2012/477, decision No. 2014/3990, it was accepted that the consequence of unlawfulness would arise in respect of the whole of the building constructed:
“…since, in the face of the fact that the zoning plan taken as the basis for the building permit has been found unlawful and annulled by the judicial authority, it was concluded that the building permit too had been left without a basis, and that it was not possible for a building constructed under an unlawful permit to confer on the person concerned an unconditional vested right for the future…”
According to the approach adopted by the Council of State, a change in the plan after a building permit has been granted in conformity with the plan does not give rise to a vested right of an absolute nature for the person concerned. However, if a permit has been obtained and the construction has reached a certain level or has been completed, the completed part of the building must be regarded as a vested right of the owner. That said, the practice of the Council of State on this matter does not present a settled picture.
Frequently Asked Questions
What is a zoning plan?
A zoning plan means the plan that provides detailed information concerning the place where the zoning implementation is to be carried out. Our legislation makes the making of a zoning plan compulsory in places with a population exceeding 10,000. The plan consists of the master zoning plan and the implementation zoning plan.
How is the master zoning plan defined?
The definition contained in Zoning Act No. 3194 is as follows:
Zoning Act No. 3194 — master zoning plan
“It is the plan drawn on current maps, in conformity with the general spatial principles of regional plans, if any, and with environmental plans, if any, with the cadastral situation, if any, marked thereon, which is drawn up in order to show the general forms of use of the parcels of land, the direction and size of the development of settlement areas, population densities and thresholds, and transport systems, and to serve as the basis for the preparation of implementation zoning plans, and which forms a whole together with its plan provisions and report.”
How is the implementation zoning plan defined?
The definition in the Act is as follows:
Zoning Act No. 3194 — implementation zoning plan
“It is the plan drawn on approved current maps, with the cadastral situation, if any, marked thereon, in accordance with the principles of the master zoning plan, showing in detail the building blocks of the various districts, their density and layout, the roads, the implementation stages that are to form the basis of the zoning implementation programmes required for implementation, and other information.”
Who may bring an action to annul a zoning plan?
The right of action is granted to everyone whose interest is impaired by the plan whose annulment is sought. Non-governmental organisations, as well as natural persons whose interest is infringed, may bring such an action.
Does an action brought by a single person affect all parcels?
Since a zoning plan is a regulatory administrative act, where an action brought by a single person is upheld, the decision given produces consequences for all the parcels covered by the plan.
What happens to completed buildings in a place where the plan is annulled?
According to the approach of the Council of State, if a permit was obtained after the plan and the construction has reached a certain stage or has been completed, the completed part of the building must be regarded as a vested right of the owner; for that reason, as a rule the rights of those with completed buildings in a place where the plan has been annulled are not impaired. It is difficult, however, to say that this approach is settled; decisions to the contrary may be encountered.
Must the implementation zoning plan conform to the master zoning plan?
Since there is a hierarchical link between plans, the lower-tier plan must conform to the higher-tier one. As the implementation zoning plan is situated beneath the master zoning plan, it must comply with it; whatever purpose an area has been set aside for in the master plan, it must be allocated to that same purpose in the implementation plan.
Independent Legal Assessment
In actions brought against zoning plans, the outcome most often depends on which element of defect the claim is founded upon. When the competence of the authority that prepared the plan, the approval and publication procedure, conformity with the higher-scale plan and whether the plan notes have been applied equally are each set out separately, the scope of judicial review takes concrete shape. The second critical heading is the retrospective effect of annulment: whether the permit has been left without a basis, and whether a vested right will be protected in respect of a completed building, must be argued separately in each file, since the case law is not settled.
- Establishing from the outset by which authority, at which scale and on which date the plan was approved
- Documenting the public display and publication process and correctly calculating the time limit for bringing an action
- Matching the claim of contravention of the higher-scale plan with the specific plan decisions
- Arguing the interference with the right of property in terms of proportionality
- Evidencing the actual stage of the building at the date of annulment as against a defence of vested rights
Independent Legal provides legal support in actions for annulment to be brought against zoning plans and in the related permit disputes.