The Means of Defence against an Unlawful Approval issued by a Building Authority under the Building Act

In the course of the last year the Supreme Administrative Court’s resolution Ref. No. 1As 436/2017-43 dated 17 September 2019 has changed the view of the administrative courts on the judicial review of approvals issued by the building authorities under the Building Act.

In the respective resolution the Supreme Administrative Court has come to a new conclusion that the approvals issued by the building authorities under the Building Act are in the nature of administrative decisions. Based on this conclusion, the legal defence against any such unlawful approval shall be henceforth an “action against the decision of the administrative authority” instead of an “action against an unlawful intervention, instruction or coercion”, which was until now the applicable mean of defence. Based on the “action against an unlawful intervention, instruction or coercion” the administrative court could only prohibit the administrative authority to rely on such unlawful approval in the future, or, if applicable, to impose an obligation to restore the state prior to such unlawful approval. On the contrary, based on the “action against the decision of the administrative authority” the administrative court may revoke the illegal approval and return the matter to the respective administrative authority to continue with the proceeding.

However with regard to a New Building Act being currently prepared, the future of the approvals under the Building Act is now uncertain. The legislative intention as well as the draft of the New Building Act introduce a unified administrative decision which should replace all of the following: the existing zoning approval, the notification procedure on the intent to build, the approval of execution of the notified intent to build, as well as the joint zoning approval under the current legislation.