Our key expert in the field of dispute resolution and arbitration and a PhD in Private International Law – Tsvetelina Dimitrova, is the author of the section “International Arbitration –…
With its final decision dated 11.12.2019 from administrative case №775/2018, the Supreme Administrative Court confirmed the first instance decision of the Administrative Court of Sofia, which quashed a number of new public consultations, provided for by the Ordinance for the Order and Regulation of Public Consultations in the Area of Spatial Development and Organisation on the Territory of Sofia Municipality (‘the Ordinance’). The cancellation of the regulation concerns article 4 of the Ordinance – entirely nullifying sub-paragraphs 2 and 3, and only partially applying to sub-paragraphs 1 and 4. The court order thus removes the planned consultations in relation to the following acts:
– the granting of planning permits in relation to providing for construction of the sites under art. 12 of Structure and Building in Sofia Municipality Act (SBSMA) in development zones and single areas of the green ecosystem as explained by the SBSMA (Article 4, Paragraph 1, Item 4)
– the integration plan for city regeneration and development of Sofia municipality
– the requirements of article 125 of Land Development Act regarding the development of:
– a new land development plan or changes to the current land-use plan;
– detailed land development plans concerning the insertion of municipal sites of primary importance;
– rules relating to tenders in the area of spatial development and organisation;
– detailed land development plans for parks and open spaces;
– detailed land development plans for cemetery grounds;
– detailed land development plans assigned by Sofia municipality in accordance with article 16 ;
– specialised detailed land development plans pursuant to article 111
– detailed land development plans regarding the protection of fixed cultural property reflected in the schemes in the documents of the current General Urban Plan for the cultural and historical heritage, with the exception of those that have undergone public consultation within the meaning of Art. 81, para. 4 of the Cultural Heritage Act
– projects for:
– detailed land development plans providing for the insertion of buildings with a height above 50 m. on the territory of Sofia municipality, where changes to these plans are subject to public consultations for each additional construction of over 25 m.
– changes to detailed land development plans for parks and open spaces;
– spatial planning studies according to the Law on the Environmental Protection Act for the development area of the new business center
– schemes for the insertion of movable objects and advertisement elements under articles 56 and 57 of Law for Land Development and The Ordinance on the Movable Objects, the Advertising, Information and Monumental-Decorative Elements and the Advertising Activity on the Territory of Sofia Municipality, and in properties – public municipal property
– investment projects finances with funds from the European Union
The court order also cancels the general possibility, introduced by article 4(3) of the Ordinance, of public consultations being held at the discretion of the Sofia City Council, or by order of the mayor or other local government officials. The Supreme Administrative Court prohibits the exercise of such general powers, outside those explicitly conferred on certain local authorities in acts of a higher legal importance.
The motives of the decision state: “It is unacceptable that such discretionary powers be introduced by means of a regulation, as this borders on arbitrary administrative action, especially since there are no concrete restrictions in place.”
The Supreme Administrative Court’s decision is based on the requirements of the Law on Regulations – namely that a regulation must be conform to the law, as the latter is of a higher legal order. A regulation cannot provide for public consultations, other than those explicitly outlined in the Law for Land Development and the Law on Spatial Planning of Sofia Municipality. The two aforementioned laws provide a rule-based framework that the regulation should conform to.
The repeal of the articles of the Ordinance outlined above was done at the request of the National Association of Property Developers (NAPD).
The importance of the court order issued by the Supreme Administrative Court extends to both businesses and citizens, by limiting the reach of local administration. Its main impact consists in the confinement of the powers of local government with regards to the mandatory legal framework, in the case where its discretionary powers have reached an inadmissible level. The decision seeks to restore the balance between the protection of private interests and of the “needs and expectations of society”.
Legal consultations and representation in court were provided by the team of Georgiev, Todorov & Co, with the participation of our lawyer Miglena Peneva.