Recodification of the Construction law
On June 24, 2019, the government of the Czech Republic approved the proposed outline[1] of the new Building Act, which has been submitted to comment procedure at the beginning of February. The recodification of construction law is part of the government's plan on legislative works for 2019. The main declared objective of the recodification is the overall simplification and acceleration of construction.
However, a strong wave of criticism has risen over the proposed outline during the comment procedure. The critique comes from academics[2], as well as from the Czech Chamber of Authorized Engineers and Technicians Active in Construction[3] and from the Supreme Administrative Court.[4]
The main innovations proposed by the outline include institutional changes, computerisation of the agenda, changes in the area of territorial planning and in the area of building permits. The proposed outline also anticipates changes in judicial review.
Institutional changes
The approved outline anticipates a completely new two-tier system of building authorities, whereas the competence thereof should no longer fall under municipal or regional authorities. The newly established Supreme Building Authority shall constitute the highest authority. Building authorities should be entrusted with the complete building agenda, including special constructions regulated by special acts (i.e. water, air, rail or road constructions).
The status of the concerned authorities
Another significant change is the proposed restriction of the concerned authorities’ participation on building procedures. The proposed outline assumes integration of a considerable amount of the agenda of some concerned authorities[5] into the agenda of the building authorities or cancellation of certain agendas without any substitution respectively. The statements of the concerned authorities should no longer constitute a binding opinion, i.e. these statements should no longer represent a binding procedural document and the building authority shall be allowed to issue a decision contrary to such a statement. This proposal is strongly criticized by the professional public, as it promotes arbitrariness and may result in restricting the participants’ right to a fair trial.
Territorial planning
The proposed outline also anticipates a conceptual change to territorial planning, proposing to introduce a territorial development plan as a generally binding national planning tool. The outline further intends to change the legal form of territorial planning documents – on the national level, it proposes a form of a governmental regulation and on the level of self-governing units, it intends to replace the measures of general nature by the generally binding ordinances. This change is also subject to criticism since it would significantly reduce the number of persons who could initiate judicial review.
Faster procedure?
It is in particular the introduction of the unified planning and building permit procedure, computerisation of the agenda as well as the automatically generated building permits that should help speeding up the issuance of building permits.
First of all, the proposed outline aims to integrate all of the planning and building procedure alternatives, as well as the related environmental impact and other assessment procedures, into a single procedure with inviolable deadlines for the comments of the parties and authorities concerned. The result of this procedure is supposed to be one final decision.
The outline furthermore proposes to introduce electronic submission forms, whereas the establishment of a single information system is presumed, into which the motions and related documentation would be filed. The publication via such system would have direct effects on the time periods.
Another, strongly criticized instrument, is the proposed introduction of automatically generated building permits in cases where the building authority fails to issue a decision within the given deadline. In such case, the information system would automatically generate building permit based solely on the documents submitted by the builder.
As a result of the comment procedure, the proposed outline does after all preserve the necessity of obtaining the owner's consent, which is currently imposed under Section 184a of the Act no. 183/2006 Coll., Building Act, as amended. This is due to the strong criticism of the original proposal to strictly separate the private and public aspects of construction. The outline has originally proposed that it would not have been necessary to submit the land owner’s consent in order to execute the construction on their land during the building procedure.
The proposed outline also introduces the institute of preliminary information, which should guarantee the terms under which the construction can be carried out, state the participants of the respective building procedure and list the documents which are to be submitted. Such guarantee shall be valid for the time period of 2 years. Provided that the given conditions are met, the building permit may be the first act issued in the respective building procedure.
Review of the decision
The proposed outline has also introduced several changes to the administrative and judicial review. The Appellate Building Authority should be obliged to decide on the merits, i.e. it shall not be allowed to return the case to the first instance for further procedure. Regional courts should also be able to change the contested decision in the judicial review, i.e. issue a ruling on the merits. Additionally, the new Building Act should stipulate binding grounds for granting the suspensive effect to an administrative action in building matters.
The effects of the new Building Act?
Following the governmental approval of the outline in June, the wording of the Act is now under preparation. The Government expects to submit it to the Chamber of Deputies in the first half of 2020. According to the original estimates, the new Building Act should become effective in the spring of 2021, however, this term does not seem to be realistic yet. With the strong wave of criticism towards the proposed outline, we can expect extensive debates within the legislative process and therefore, an overall long journey towards the adoption and, eventually, effectiveness of the new Building Act is to be expected.
[1] Available from https://apps.odok.cz/veklep-detail?pid=KORNB95HSTNF
[2] https://ekolist.cz/cz/publicistika/nazory-a-komentare/petr-svoboda-a-kol.otevreny-dopis-vlade-proti-novemu-stavebnimu-zakona
[3] http://www.ckait.cz/content/rekodifikace-stavebniho-prava-kvapna-prace-bez-promyslene-analyzy-nazor-odborniku-ckait
[4] https://apps.odok.cz/attachment/-/down/ALBSB9RMTQYC
[5] E. g. The authorities competent in the area of historic preservation, protection of nature and landscape, forests, water, air, public health etc.