18 Jul Hierarchical recourse against a town planning decision
Hierarchical recourse against a town planning decision
by George Coucounis
“It constitutes the first step to check the correctness of the decision”
A person affected by a town planning decision regarding his application for the issue of a town planning permit in order to develop his immovable property, can file a hierarchical recourse before the Council of Ministers through the Minister of Interior. Such a recourse can be filed against the refusal of the planning authority to issue the requested permit or against any term imposed thereby. This right is mentioned in the notification for the refusal or the granting of the permit, as well as that the recourse must be filed within 30 days from receipt of the planning decision. The person affected must pay the necessary charges and deliver a copy of the recourse to the town planning authority. There is a relevant provision in the law giving power to the Council of Ministers to accept or dismiss the recourse or to annul or amend any part of the town planning decision, as well as they can examine the original application as if it had been submitted before them. The hierarchical recourse is a way of examining the correctness of the town planning decisions and the person affected can choose this procedure instead of filing a recourse before the Administrative Court. The decision of the Council of Ministers can be the object of a recourse before the Court if the complainant is adversely affected, having a second chance to examine the legality of the decision. Taking into consideration the shortness of the procedure and the low cost involved for the examination of the recourse by the Council of Ministers, this procedure is preferable.
A hierarchical recourse is submitted in the form of a letter, in which the complainant states the facts of his case and the reasons for the submission of the recourse, accompanied with the relevant documentation. The charges payable are very low and they are imposed per residential unit and in the case of a touristic, commercial, industrial, agricultural or other development, the charges differ accordingly. The town planning decisions against which a recourse can be filed concern the Town Planning and Housing Department and the town planning authorities of the municipalities, where such authorities exist. A Ministerial Committee is established to which the Council of Ministers assigns their power to decide on the recourse. The Committee examines the actual facts and the legal characteristics which are related to the recourse submitted, the reasons supporting it, the decision of the planning authority and decides accordingly. When the recourse is accepted, the Ministerial Committee calls the town planning authority to re-examine the application and the latter must comply.
According to case-law, the town planning permit constitutes the prerequisite for the development of a land. The term “development” has a broad meaning in the law and includes every substantial change of the character or the use of an immovable property. A mechanism is set up in order to clarify any doubts regarding the nature and the character of the proposed works and if they constitute development. The town planning permit is connected with the land and its duration is normally 3 years unless its terms provide otherwise; therefore, the town planning permit is decisive for the development of the land. Moreover, it constitutes a single administrative measure regarding both the proposed development and the terms upon which it will be carried out.
The Administrative Court often annuls town planning decisions, which have been criticised judicially, such as cases where the town planning authority omits to reply, refuses to issue the town planning permit due to proposed widening of the public road network without street planning, the preservation of a piece of land for future construction of a public school or for carrying out any other project, the encouragement for the submission of an application for the division of a land into plots and the subsequent change of its terms or the imposition of drastic terms affecting the development, the existence of a notice or of an order for compulsory acquisition, the imposition of a term in the town planning permit in favour of a third person or even a reply through a letter, the content of which is not understandable with an aim to avoid a clear reply and cause delay. Consequently, the fair treatment of the citizen by the town planning authorities, when applying for the development of his land, should be demonstrated through the legality of their decisions, since they are in an advantageous position knowing better the town planning in comparison to the citizen. The hierarchical recourse constitutes the first step for the protection of a citizen whose rights are affected by a town planning decision