15 Jan Preliminary views of the Town Planning Authority
Preliminary views of the Town Planning Authority
by George Coucounis
“The expression of views does not constitute a town planning permit, but binds the Authority for a period of one year”
THE owner of a piece of land who intends to develop it may apply to the competent Town Planning Authority for preliminary views before applying for a town planning permit. This opportunity is usually used by the owners in order to be informed whether their town planning application will be treated positively or negatively based on the applicable planning/legal framework in the area. The preliminary views of the Town Planning Authority were not binding until the amendment of the Town Planning Law with Law 134(I)/2015, when a provision was introduced in article 25(8) which states that the expression of views does not constitute a town planning permit, but binds by law the Authority or any of its officers for a period of one year. The views of the Authority constitute an executory administrative act and in case they are negative, the affected person may apply to the Administrative Court requesting the annulment of the decision. Although the examination of such a recourse by the Court will exceed the period of one year, nevertheless the affected person is entitled to pursue his recourse in order to secure an annulment order, so that he will be entitled to claim damages for the loss or damage he suffered.
Prior to the above amendment, the expression of views by the Town Planning Authority did not constitute a town planning permit nor was it binding to it or its officers, being of informative content. However, with the amendment that took place, a binding competence was created upon the Authority either to reject the town planning application if the views are negative or to approve it if they are positive. The issue of whether the preliminary views of the Town Planning Authority constitute an executory administrative act was examined by the President of the Administrative Court in her judgment issued on 30.12.2020 in joint recourses of owners of plots seeking the annulment of the decisions of the Town Planning Authority having expressed the view that no town planning permit could be granted for building an individual house on their plots. The owners submitted applications for preliminary views in accordance with the provisions of article 25(8) which were examined by the Town Planning Authority, informing them that based on the applicable town planning/legal framework in the area where the Land Consolidation Scheme was applied, any town planning application for such development could not be positively treated.
The Authority raised preliminary objections that its preliminary views were not an executory administrative act, that the temporary nature of the views being binding, i.e. valid for only one year which had elapsed, rendered the recourses of no essence as the applicants were not harmed since they did not submit a town planning application during the year and that the applicants violated the doctrine of approval and disapproval, since they applied for preliminary views which they now dispute. The Court rejected the preliminary objections of the Town Planning Authority with reference to the amendment of the law and the case law of the Hellenic Council of State.
With regard to the objection that the acts were not executory, the Court held that the preliminary views under the circumstances constituted a unilateral act of the administration with a binding effect. Although the time of one year had elapsed and the recourses were pending before the Court, this did not deprive the applicants of the right to pursue their recourses until the end, in order to seek redress in the civil court for damages or losses they suffered. Consequently, the trial did not come to an end, since the applicants claim that they suffered financial damages due to the act of the administration, not being able to develop their plots for one year. Regarding the violation of the doctrine of approval and disapproval, the Court ruled that if one applies to the administration for preliminary views before incurring expenses for architectural plans e.t.c., which will be binding for one year, this fact does not prove that he waived his rights to file a recourse against an act which violated his legitimate interests.
Regarding the substance of the recourses, the Court accepted the applicants’ position that the acts were to their detriment and therefore, there should have been proper investigation and reasoning, which were absent. She also pointed out that the letters of the Town Planning Authority were signed by a certain officer without submitting an authorisation to sign them on behalf of the District Officer of the Town Planning Authority or transfer of competence to him for decision-making. Therefore, the Court annulled the contested acts due to the incompetence of the organ which issued them.