Authors: František Korbel, Josef Hlavička, Jiří Buryan, Jan Fikar
The new year 2021 will entail, among other things, changes in construction law. Act No. 403/2020 Sb., with effect from 1 January 2021, amends problematic institutes of construction law and brings a number of conceptual novelties that we have been expecting only since the future recodification. The amendment is primarily focused on the implementation of construction projects for key infrastructure under Act No. 416/2009 Sb. It also gives it a new abbreviated name – the Line Act. However, it also contains substantial changes to the Building Act, and also interferes with the general regulation in the Administrative Procedure Code.
The main goal of the new regulation is to enable faster and more efficient preparation of construction projects. Therefore, the regulation of binding opinions in the Administrative Procedure Code changes, and explicit deadlines for their issuance are introduced in Section 149. Newly, the authorities will have to issue binding opinions without undue delay, no later than 30 days from the submission of the application. The deadline can be extended before its expiry in complex cases, but by a maximum of another 30 days.
If, in proceedings under the Building Act, the authorities concerned do not issue a binding opinion within the statutory time limit, it shall be automatically deemed that a favourable binding opinion has been issued. This should motivate the authorities to meet the time limits.
However, it should be noted that a favourable opinion that is deemed to have been issued may be revoked by a superior authority if the statutory conditions for its issuance have not been met, within 6 months from the effective date of the decision, which was conditioned by a binding opinion.
Although this regulation is intended to contribute to the acceleration of the preparatory stage of construction projects, in our opinion, with regard to the possibility of revoking the deemed favourable binding opinion, it will also lead to legal uncertainty for the developer. We therefore recommend continuing to obtain properly issued binding opinions and not rely on this fiction. The fiction will not apply to some binding opinions, especially in the field of nature and landscape protection (e.g. to binding opinions on the environmental impact assessment of a construction project).
The Building Act will also undergo significant improvements in the area of land use planning. The amendment supplements the much-needed binding land use planning tool, which will address in detail the projects falling within the competence of the State and enable decision-making on key projects in a territory without the need for their approval in the subsequent land use planning documentation of regions and municipalities. It is a nationwide territorial development plan, which will be linked to the territorial development policy.
The territorial development plan will be issued by the Ministry of Regional Development in the form of a measure of a general nature and will be binding for the preparation and issuance of territorial development principles, land use plans, regulatory plans and, newly, for decision-making in a territory.
In practice, the territorial development plan will define areas and corridors, especially of the transport and technical infrastructure of international or national importance, or those that overlap the territory of one region. The follow-up regional territorial development principles and the land use plans of municipalities will have to respect the areas and corridors defined in the territorial development plan.
It will be possible to use the territorial development plan – in contrast to the current territorial development policy – for the direct permitting of projects in the territory, and thus more effectively to promote, in particular, line and other essential projects of national importance. This should significantly speed up the permitting of these large-scale constructions, which can no longer be blocked by the reluctance or inability of regions and municipalities to include them in their subsequent land use planning documentation. This should also reduce the administrative complexity and financial cost of their preparation.
The partial amendments to the Line Act include the possibility for an eligible investor to combine the application for the issuance of a decision under the Building Act for the construction of calculated transport infrastructure (construction of motorways or 1st class roads, construction of a national railway or related construction) and the application for the issuance of an interim decision in expropriation proceedings by which the rights necessary for the implementation of the permitted project are expropriated or limited.
The decision of the building authority will thus contain at least two operative parts, where with one operative part the building authority will place or permit a construction and with the other operative part will expropriate or limit the necessary rights for the implementation of the project.
The existing regulation of the Line Act shall apply accordingly to the operative part of an interim decision. The interim decision cannot be appealed; the court shall decide on an action against the interim decision within 60 days. Thus, eligible investors do not have to conduct proceedings pursuant to the Building Act and the Expropriation Act separately. Instead they will conduct them in one joint proceeding before one authority with a single decision.
Changes in construction law from 1 January 2021 can be perceived positively, although it is not certain to what extent the experiment with the fiction of binding opinions will succeed. In our opinion, the problems with binding opinions will not disappear until they are conceptually overcome and repealed by the new Building Act. If fictions of binding opinions begin and occur after 1 January in practice, it can be not only an acceleration, but also another blow to the legal certainty of all actors in the permitting process, for which the developer will potentially suffer most. On the contrary, we can perceive positively the new territorial development plan, which would otherwise be envisaged only in the new Building Act, as well as the possibility of joining the permitting and expropriation proceedings.
Let us hope that these changes in the permitting of construction projects will contribute to the economic growth of the Czech Republic and the support of the construction sector. Even more significant positive changes are expected from the new Building Act, which was approved this November in the first reading by the Chamber of Deputies (print 1008). Until its adoption, however, it is necessary to appreciate any partial change aimed at improving the current regulation of construction law.
We will discuss the impacts of the amendment to and the draft of the new Building Act in more detail at a seminar organised by HAVEL & PARTNERS ACADEMY on 5 February 2021, to which we cordially invite you.
