In its policy statement of February 2014, the Czech government undertook to prepare an amendment of the act on town and country planning and on the building code (the Building Act), which should simplify and accelerate the permit procedure. In June last year, the Czech Ministry of Regional Development distributed a draft of the Building Act and related acts during the intradepartmental consultation procedure. At the end of January this year, the Ministry of Regional Development and the Ministry of Environment, as a co-proposer of the bill, presented the draft of the amended Building Act and 34 other related acts (“Building Act amendment”) to the government following more than six months of dealing with the comments raised during the consultation procedure.
Although we can expect that due to deliberation by the government and during the subsequent legislative procedure certain changes will be made to the draft of the amended Building Act (as a matter of fact the draft bill was presented to the government with 36 outstanding contradictions; the most important ones are analysed below in this article), we can already assess which of its parts could contribute to the desired goal, i.e. simplifying and accelerating the permit procedure, and how a greater contribution could possibly be made in this respect.
One of the most important conceptual changes to be brought by the Building Act amendment, namely the introduction of a coordinated procedure and the integration of the EIA within the permit procedure, can clearly be seen as positive. However, the ultimate effect of this conceptual change is substantially diminished due to several deficiencies. For example, although under the draft of the amended Building Act it will be possible to conduct the coordinated procedure for all types of structures falling within the competence of special building authorities (with the exception of aviation structures), in the context of structures falling within the competence of military and other building authorities the coordinated procedure will possibly only apply to “structures for the energy sector”.
The solution which was chosen for the regulation of the coordinated procedure concerning groups of structures has provoked similarly mixed feelings. The coordinated procedure will be permissible in general, even for groups of structures falling within the competence of different building authorities. The competence for conducting the coordinated procedure for such a group of structures will depend on the competence for permitting the main structure (in the coordinated procedure, building authorities competent to permit secondary structures will have the position of concerned authorities issuing binding opinions for the purposes of the issuance of a coordinated permit). A major exception from the option groups of structures containing, as a secondary structure, water works that require a water management permit. This exception has become one of the most significant and important controversies to be dealt with by the government.
Nevertheless, the substantial conceptual deficiencies of the amended Building Act are not caused by what is contained in the amendment but by what is absent. This mainly includes better interconnectedness with the act on environmental impact assessment and on amendments to certain related laws which should, if possible, simplify the whole EIA procedure. The amendment also lacks a regulation proposed by the government’s legislative proposal of the act on line traffic structures, the preparation of which was suspended with an express reference to the planned Building Act amendment.
Although we doubt that these conceptual deficiencies can be remedied during the remaining phases of the legislative procedure, partial problems can be still solved, especially as some of them are the subject of contradictions about which the government must decide before the draft is submitted to the Chamber of Deputies.
There are outstanding contradictions for a total of 36 comments. Whilst some of the remaining contradictions remain due to the insistency of the Ministry of Regional Development, others are the consequence of the stubborn position of some ministries insisting on their opinion even after participation in a series of all-day conference deliberations.
For example, the Ministry of Agriculture consistently requires the above-mentioned exemption from the possibility to conduct the coordinated procedure with respect to a particular group of structures, i.e. those which contain, as a secondary structure, water works that require a water management permit. As a water management permit is required even for relatively “marginal” water works which typically form a part of a group of structures, this requirement of the Ministry of Agriculture substantially limits the applicability of the coordinated procedure.
Another significant contradiction is the proposal of the Ministry of Regional Development to repeal a provision stipulating the authorization of the Municipality of Prague to issue a decree setting out the general requirements for the use of zones and technical requirements for structures in Prague in a way different to what is applicable for the rest of the country (e.g. an authorisation for the Municipality of Prague to issue Prague-specific building regulations). The Ministry of Defence, the Ministry of Education, Youth and Sports, the government’s Legislative Council or the head of the Office of the Government of the Czech Republic, in addition to the Prague Municipal Authority, continue to express their strong disagreement with such a solution.
We should not forget the continuing disagreement of some of the consulted parties with the plan of the Ministry for Regional Development to exclude, in the case of the coordinated procedure and/or zoning procedure including an EIA, the application of the relevant provision of the EIA Act under which an appeal against a decision permitting the placement or implementation of a proposed structure assessed in accordance with this act can be filed by an “established environmental organisation” even if such an organization was not a party to the proceedings in the first instance.
Last but not least, controversy continues to surround the issue of reducing the periods for the commencement of a review procedure the subject of which is a measure of a general nature under the Building Act and/or the period for submitting a motion for the cancellation of a measure of a general nature at an administrative court. The originally proposed six-month periods have been extended to one year from the effective date of a measure of a general nature. Nevertheless, the Ministry of Industry and Trade insists on reducing both general periods to the original period of six month. In our opinion, it is crucial that such periods are set out by law in such a manner that they prevent abuse of the concerned right, unlike the current legal regulation prescribing periods of 3 years.
We will watch with interest how this important Building Act amendment develops, particularly some of the key aspects we have covered in this article