The possibility of annulling urban planning documentations

I. Context

In order to execute any property or building complex, the authorization of execution activities in accordance with Law 50/1991 shall only be granted within the limits set out in the urban planning documentation (General Urban Plan, Zoning Urban Plan, and Detailed Urban Plan). Consequently, these administrative acts are of fundamental importance in shaping investment opportunities in real estate, both in the short and long term.

The development strategy of the districts and the applicable general conditionalities are established by the General Urban Plan, with the possibility of specific derogations by developing a Zonal Urbanistic Plan.

However, since not every regulation included in the General Urban Plan can be amended by implementing a Zoning Urban Plan, we believe it is important to analyze the possibility of annulling, in whole or in part, of the General Urban Plan.

This remedy of annulment is all the more necessary since the costs necessary for developing a Zoning Urban Plan are borne by the interested party (Article 54(2) of Law 350/2001).

II. Temporary consequences of the General Urban Plan

The General Urban Plan (hereinafter referred to as "GUP") has both a guiding and strategic character and a regulatory character. It is also the main operational planning instrument, providing the legal basis for implementing programs and actions.

According to the provisions of Article 46 paragraph 1 Law no. 350/2001, each administrative-territorial unit must update to a maximum of 10 years its General Urban Plan according to the foreseeable evolution of social, geographical, economic, cultural factors and local needs.

Until 2018, the validity period of  GUP could be extended once, on the basis of the   Local Council/General Council of the Municipality of Bucharest Decision, until the new general urban plan comes into force, but not exceeding 10 years from its expiration date.

However, with the entry into force of GEO no. 51/2018, the validity period mentioned above may be extended by Decision of the Local Council/General Council of Municipality of Bucharest until the entry into force of the new general urban plan, provided that the steps for preparing/updating the general urban plan are initiated before expiry of the validity period.

The proceedings to be initiated by the competent authority are not defined by Law no. 350/2001, by the Methodological Norms for the implementation of Law no. 350/2001 approved by MDRA Order no. 233/2016 nor by MLPAT Order no. 13 N/1999 on the Guidelines on the methodology for the elaboration and content of the PUG.

It follows that, at the present time, the validity period of GUP can be extended for an increased or unlimited period of time, the only condition to be met being that steps must be taken to update before the initial validity period expires.

Consequently, it is up to the competent public authorities to decide when and how to draft the development strategy through the GUP.

However, the validity period of GUP represents a high practical importance, as the conditions stipulated in this planning documentation  must be respected throughout its duration. For instance, if the GUP provides for a service to assume that a public road is being developed, it shall apply to privately owned land on which it is established for the entire duration of GUP (including in the event of its extension). The freezing of  property will operate even if no works are made in this respect. However, this issue clearly infringes the individual's rights by violating the right to private property for an extended period of time.

For example, we mention below the validity of some General Urban Plans at the national level:

• The GUP of Bucharest municipality was adopted in 2000 (CGMB Decision no. 269/2000) and successively extended by Decisions no. 324/17.11.2010, no. 241/20.12.2011, no. 232/19.12.2012, no. 224/15.12.2015 and no. 341/14.06.2018. According to the CGMB Decision of 2018, the validity of the PUG 2000 is extended until the date of elaboration of a new General Urban Plan;
• The GUP of Brasov municipality was adopted in 2011 (HCL no. 144/2011) and extended in 2021 for a period of 5 years (HCL no. 117/2021);
• The GUP of Cluj-Napoca municipality was adopted in 2014 (HCL 493/2014) and is valid until 2024;

III. Position of the public authorities - the impossibility of annulling the GUP

Traditionally, it has been considered that GUP and its related Local Urban Planning Regulation could not be censured by the  courts in administrative litigation matters as this assumption would be a breach of the separation of powers in the state.

This approach was and is still adopted by the public authorities in the current disputes concerning the GUP annulment, arguing that courts cannot censor the substance of urban planning documentation because:

• The urban planning documentation cannot in itself be unlawful because it takes into account reasons of expediency and town planning determined by expert analysis and in-depth studies prior to the GUP;
• The use and destination of land within the administrative-territorial authority's area is the prerogative of the local public administration authority under Articles 3 and 5 of Law 350/2001;
• Urban planning documents cannot  harm citizens' rights;
• The urban planning documents could be amended only by the procedure of updating and by following the specific methodology for this purpose according to Law no. 350/2001.

We consider the view expressed by the public authorities and described above to be limiting, trying to induce the idea of an absolute presumption of legality regarding this type of administrative act in the field of urban planning.

The practice of the courts is differentiated and randers  consistenly in the annulment of these type of administrative acts if found to be unlawful.

IV. Annulment of urban planning documents GUP and ULR

Firstly, no legal provision exempts the verification of administrative acts in the field of urban planning from  the administrative dispute procedure under Law 554/2004.

Secondly, Article 64 of Law No 350/2001 expressly states  the possibility of challenging the Decisions of the Local Council or the CGMB approving urban planning documentations.

Further, the urban planning documentations GUP and ULR approved by Local Council or Resolution CGMB are normative administrative acts, which implies  that  wording the administrative preliminary complaint and subsequently, the promotion of the action for annulment, can be made at any time according to Article 7 para. 11 Law no. 554/2004.

a) The issue of lawfulness

The lawfulness of the administrative act requires four aspects to be fulfilled simultaneously: (i) the act must be issued by the competent authority within the limits of its competence; (ii) the act must be issued in compliance with the procedure and form laid down by law; (iii) the content of the act must comply with the legal provisions in force; (iv) the act must correspond to the purpose pursued by the legislator.

In order to establish the lawfulness of the urban planning documentation, the court shall verify (i) the conformity of the administrative act with the normative acts and  (ii) the compliance with the principle of proportionality between the general interest and the particular interest:

• The principle of compliance with legal provisions contained in legislation

The conformity of the urban planning documentation with the provisions contained in the other legislative acts is aimed at respecting the rights and freedoms enshrined in the Constitution, the Civil Code, or any other normative act. With regard to GUP, the majority of legal provisions violations concern non-compliance with private property rights.

For example, a change in the functional classification of a land plot, as a result of the updating of GUP, may be subject to the court's analysis in terms of compliance with the principle of guaranteeing private property enshrined in Article 44 of the Constitution, Article 555 of the Civil Code. and Protocol No 1 to the E.D.O. Convention.

In this process, the court will verify the actual situation of the property in relation to the pre-existing functional classification, neighbouring properties, as well as the factual use of such land (by means of a specialized judicial technical expertise).

In such a case, Oradea Court of Appeal stated that the classification of the property as UTR_Uliu was not based on clear, foreseeable, and objective criteria on the basis of which the area in question was fragmented, given that, in the immediate proximity of the building, there are plots included in UTR_Liu with the same urban planning conditions of the area and the same facilities, thus the principle of compliance with the legal provisions is violated. For these reasons, the Court assessed that the applicant's right of ownership was infringed, which led to the partial annulment of GUP.

• The principle of proportionality

In addition to verifying the conformity of the urban planning documentations GUL and ULR with the existing legal provisions, the court shall also verify its compliance with the principle of proportionality.

More specifically, the urban planning documentation for the GUP and ULR must ensure a reasonable balance between the general interest and the particular interest of citizens, which can only be secured within the limits of the law.

In this respect, the ECtHR has stated in case Arsenovici v. Romania that any interference of the authority with the owner must not only pursue a general interest but must also maintain a reasonable proportionality ratio, a fair balance, between the interests of the community and the imperatives of protecting the fundamental rights of the individual.

b) The issue of appropriateness

Regarding the analysis of the appropriateness of administrative acts, as an expression of the executive powers, we consider that it is possible to exercise judicial control from the excess of power perspective.

Excess of power is regulated by Article 2(n) of Law No 554/2004 as the exercise of the public authorities' right of discretion in violation of the limits of competence laid down by law or in violation of citizens' rights and freedoms. 

If the right of discretion of public authorities is exercised in violation of the rights and freedoms of citizens, the question of expediency interferes with the legality of the administrative act from the perspective of excess of power. Taking this hypothesis into account, the court shall be able to annul the administrative act in question.

In this regard, the Court of Appeal of Cluj has ruled that the partial annulment of GUP does not mean that the court has altered or intervened in any way in the authorities urban planning vision, it merely checked compliance with the law in the realization of this vision. The public authority has full freedom to complete its urban planning vision even after the ruling in the present case, however, while respecting the legal provisions in the field of property rights.

V. Conclusions

By reference to the extended validity of the GUP as well as the effects of the conditions contained therein, we consider it essential to verify the compliance with the law and even the appropriateness of GUP provisions by the courts, in case the rights and freedoms of privates are violated.

If certain provisions contained by the GUP are annulled, the competent public authority shall proceed with the adoption of a Local Council Decision or Decisions of the General Council of the Municipality of Bucharest transposing the court decision. 

We reflect that, although on a formal level, the amendment of GUP  is carried out by means of Local Council Decision, this Decision may be issued by the public authority either following the administrative approval procedure or on the basis of a final judgment. For example, the Local Council Decision no. 8/10.01.2020 issued by Cluj-Napoca Local Council regarding the amendment of "Update of  General Urban Plan of the Municipality of Cluj-Napoca approved by HCL 493/2014, in order to implement the Civil Decision no. 997/CA/2019" documentation, was issued based on the Approval Report of the Cluj-Napoca and the Expert Report of the Urban Planning Commission on the basis of Judgment 3788/2018 issued by the Cluj Court.

MAXIM / Associates

Av. Ardelean Talida Andreea

11.02.2022

[1] Decision no. 4454/2018 pronounced by the Cluj Court of Appeal; Decision no. 4148/2018 pronounced by the Cluj Court of Appeal; Decision no. 1492/2017 pronounced by the Cluj Court of Appeal.

[2] Decision no. 997 / CA / 2019 pronounced by the Oradea Court of Appeal

[3] In the same vein, the ECHR case law in the cases of Burghelea v. Romania (judgment of 27 January 2009), Iatridis v. Greece (Grand Chamber, judgment of 15 March 1999), and Hentrich v. France (judgment of 22 September 1994).

[4] Decision no. 1492 / 26.05.2017 pronounced by the Cluj Court of Appeal