Unjustified tardiness of the administrative

1. Preamble

In the context of the continuous development of real estate investments in Romania and the construction of complex real estate projects, challenging building permits or other administrative acts in the field of urbanism raises real problems. 

First of all, once a building permit is challenged, the real estate project may be blocked for an extended period of time by suspending the administrative act. Also, the entry of a dispute regarding the suspension or cancellation of the building permit in the land registry of the property may generate difficulties in case of subsequent sales.

Secondly, even if the courts dismiss these legal proceedings, the real estate project may be blocked for an extended period of time precisely because of the time required to settle such a dispute.

Through this analysis, we aim to present some quick ways of rejecting third-party applications to challenge building permits, town planning certificates, and any other individual administrative acts.

2. Preliminary complaint - admissibility condition for the promotion of actions in administrative litigation

First of all, any challenge to administrative acts through court intervention requires, as a general rule, the formulation of a preliminary complaint [1] to the issuing authority or to the superior hierarchical body of the issuing authority.

Submitting the preliminary complaint within the legal term presents importance in terms of challenging the administrative acts before the courts, the lack of this complaint or the submission over the term imposed by Law no. 554/2004 will determine the rejection of the action as inadmissible (correlated with the provisions of art. 93 of the Code of Civil Procedure).

Furthermore, if the preliminary complaint is not formulated within the legal term imposed by art. 7 of Law no. 554/2004, it will be possible to invoke that it was out of time as an exception, meaning that a possible action in suspension or annulment promoted will be rejected as an effect of admitting this exception and without verifying the substantive conditions regarding the challenged administrative act.

3. Conditions for submitting the preliminary complaint

Law no. 554/2004 regulates, as a general rule, that individual administrative acts (including building permits) can be challenged either by their beneficiary or by interested third parties.

When it comes to the beneficiary of the unilateral administrative act, the method of calculating the time limit for submitting the preliminary complaint does not raise problems, the term of 30 days, or as the case may be, of 6 months being calculated starting from the communication of the administrative act or the refusal to issue such an act.

However, third parties also have the right to challenge individual administrative acts issued in favor of other persons, this aspect usually generating various complaints and vexatious actions against the holders of administrative acts in the field of urban planning.

Any third party must meet the conditions imposed by Law no. 554/2004 in order to submit the preliminary complaint, followed by the action, the suspension or annulment of the administrative act:

•  third parties must justify that a right or legitimate interest has been harmed. Traditionally, it is considered that the neighbours of the beneficiary of the Building Permit, natural or legal persons, justify such interest or right to verify the legality of the construction of neighbouring buildings. From this point of view, associations set up for this purpose may also have the status of interested third parties when it comes to challenging the permit. With reference to the provisions of art. 5 lit. d) [2], of art. 20 para. (1) [3] and art. 20 paragraph 6 [4] of Law no. 265/2006, the law on environmental protection, non-governmental organizations have standing in this type of litigation and the provisions of Article 8 para. 11 of Law no.554/2004, are also interpreted in this key. It follows that these associations must demonstrate a direct link between the administrative act that is subject to the legality review and the direct purpose and objectives of the association, according to the statute.
• third parties must file a preliminary complaint against the administrative act within 30 days or 6 months.

4. Determining within what time limit third parties may submit preliminary proceedings.

Prior to the amendment of Law no. 554/2004 by Law no. 212/2018, the time limit for filing a preliminary complaint ran from the date on which the interested third party became aware of the existence of the act. Subsequent to the amendment that occurred by Law no. 212/2018, the term will start from the moment of knowledge about the contents of the act.

The time of acknowledgment by interested third parties must be proven by the potential petitioners/claimants, as there is no presumption to that effect.

The easiest method of informing the public about the commencement of construction works under a given permit is by installing the identification panel in accordance with the specifications set out in Annex 8 of the Methodological Norms for the application of Law no. 50/1991.

In this regard, art. 5 para. (1) final thesis, respectively art. 55 of the Order no. 839/2009 for the approval of the Methodological Norms implementing Law no. 50/1991 on the authorization of construction works, issued by the Ministry of Transport, Construction, and Tourism, contains specific regulations aimed precisely at ensuring publicity, in particular those related to ensuring the public's right to be informed.

Moreover, art. 76 of the aforementioned normative act also stipulates the obligations of investors towards the authorities, with express reference to the placement, in a visible place, of the building permit. The purpose of ensuring the publicity of construction works, which is specific only for this type of individual administrative act, is to ensure that third parties are able to challenge the building permit.

At the Cluj Court of Appeal level, we find solutions in which the court ruled that the mere claims of third parties regarding the lack of proof of posting are not considered as proven, given that the burden of proof is on them under Article 249 of the Code of Civil Procedure.

Under the current regulation of the Administrative Litigation Law, which delays the preliminary procedure for 30 days from the date of discovery by any means of the content of the act, it is necessary for any interested person to prove this factual element. In this regard, a diligent third party should formulate a request for the release of information from the authority issuing the administrative act, and within 30 days from the provision of this information of public interest, also file a prior complaint, in accordance with the 1-year time limit under Article 11 of the Administrative Litigation Act.

Furthermore, the third party's knowledge of the content of the administrative act can also be proved by other means, for example, if the apparently injured third party has lodged a prior complaint with reference to the HCL approving the PUD or PUZ on the basis of which the contested building permit was issued. Likewise, for the hypothesis that the beneficiary of the authorization would have notified at the time of the initiation of the developed project the interested third party, this can be considered as the early moment of the time limit for the formulation of the preliminary complaint.

5. Entering the civil circuit of the buildings in relation to the necessity to formulate a prior complaint.

It is also important to point out that, following the amendment of Law no. 554/2004 by Law no. 212/2018, Art. 7 para. 5 regulates the possibility of not continuing the preliminary procedure in relation to "administrative acts that can no longer be revoked since they have entered into the civil circuit and have produced legal effects". Further, if the Building Permit was issued prior to the amendment of Law no. 554/2004 of 2.08.2018, the issue of the entry into a civil circuit of the Building Permit will not raise any discussion.

Given that the Building Permit was issued after 2.08.2018, a potential action for suspension or cancellation could be brought by interested parties even in the absence of prior proceedings. With regard to this aspect, it is important to clarify the notion of "entering the civil circuit".

With regard to the interpretation of the entry into the civil circuit of the administrative act, within the jurisprudence of the Cluj Court of Appeal, there has been a singular opinion in the sense that it becomes operational as soon as the right to build is granted and the first material act of construction begins. This interpretation cannot be accepted because:

a) According to Article 37 para. 1 of the Law no. 50/1991 the legal existence of the construction and implicitly the right of ownership on it arises at the moment of the reception of the construction and the registration in the land register. As a result, authorized construction works are considered completed if they meet two cumulative conditions: (1) the elements stipulated in the authorization have been carried out, and (2) the reception has been carried out once the construction work has been completed.

b) The provisions stipulated by Law No 50/1991 must be linked to the special provisions contained in Law No 7/1996 on land registry and real estate publicity, which stipulates in Article 55(1) of Law No 7/1996 that ownership of buildings is entered in the Land Register on the basis of the building permit and the record of acceptance of works.

In conclusion, the effects of the building permit only occur when the authorized works are received, which is when they enter the civil circuit.

6. Conclusions

In summary, the general rule in administrative law is that third parties who demonstrate infringement of a right or a legitimate interest may apply to the court for the withdrawal of a building permit.

In order to pursue this legal action, third parties will be required to follow the preliminary complaint procedure within 30 days starting from the date of becoming aware of the content of the administrative act, but no later than 1 year from the date of publication of the individual administrative act. However, if it is established that third parties were aware of the content of the contested act after the 30-day period has expired, it will be possible to rely on the plea that the preliminary complaint is out of time which, if upheld, will lead to the dismissal of the action for administrative review as inadmissible.

It is essential that the assessment of third parties' interest, as well as the components of the preliminary complaint mechanism of the bill of lading on the content of the administrative act, are assessed in concreto by the courts, based on the evidence provided by the parties.

In order to re-establish the evidence concerning the moment of notification of interested third parties, it is recommended to install the notice board concerning the Building Permit at the address of the building, to be followed also by a procedure of ascertainment of this fact through the assistance of an approved Court Executor.

MAXIM / Asociații

Călina Tejan și Andreea Talida Ardelean 

[1] Law no. 554/2004 of the administrative contentious defined by art. 2 para. (1) lit. j), the preliminary complaint as "the request by which the issuing public authority or the hierarchically superior authority, as the case may be, is asked to review an administrative act of an individual or regulatory nature, in order to revoke or amend it".

[2] Article 5 lit. d) of L.265 / 2006: “The state recognizes the right of any person to a healthy and ecologically balanced environment, guaranteeing for this purpose: a) access to environmental information… b) association in organizations for environmental protection, [… ..] d) the right to address, directly or through environmental protection organizations, administrative and/or judicial authorities, as the case may be, environmental issues. "

[3] Article 20 para. 1: The competent authority for environmental protection, alongside other central and local public administration authorities, as appropriate, ensures information, public participation in decisions on specific activities and access to justice, in compliance with the provisions of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998, ratified by Law No 86/2000.

[4] Art. 20 para. 6: "Non-governmental organisations promoting environmental protection have a right of action in environmental matters".