The Supreme Court issued a judgement on 4 June 2014 to address the previously controversial definition of built-up area in detailed plans and the legal consequences of illustrations contained in planning documentation.
In the underlying case, the owner of land disputed the detailed plan of neighbouring land where a planned house was accompanied by a 200 m2 terrace which significantly exceeded the maximum built-up area provided in the general plan. The Supreme Court found that the term “maximum area to be occupied by buildings“ used to denote a plot’s total building rights in the Planning Act is not identical to “ground surface area” used in the Building Act and in building permits. The area occupied by buildings concerns buildings only and area restrictions set out in a general plan do not apply to separate structures such as terraces. Nevertheless, the area of terraces should subsequently be indicated in a building permit.
The Court also explained the legal consequences of illustrations attached to a planning solution. It found that although an illustration may reflect the intent of the person preparing the plan, it cannot serve as a reliable basis for establishing the connectedness or position of buildings or structures. These illustrative images do not determine the engineering solutions used in a planned building or structure. Nor would an illustration be sufficient to claim that a planning solution violates general plan requirements relating to the permitted building area. The Supreme Court thus found that an illustration of a planning solution is merely visual material which cannot be used to establish the suitability of a detailed plan.
In the context of general plan restrictions, this essentially means that the area of planned buildings may be calculated without pools, terraces or other non-building structures, and neighbours will have little chance to successfully dispute that choice. The Supreme Court ruling would also allow for an interpretation that these non-building structures can be designed and constructed outside the built-up area designated in a detailed plan. Furthermore, illustrations attached to a planning solution cannot serve as a basis for establishing the suitability of a detailed plan.