When a request for the issuance of a building permit is submitted, the procedure is such that the party addresses the first-instance body which must verify all legal conditions and if they are met (and it is crucial that compliance with the urban planning document issued by the local government is fulfilled) a building permit is issued. An additional control is that an unsatisfied party can address the appellate body, and who is the party authorized to appeal is prescribed by Article 115 of the Construction Act (‘The party in the building permit procedure is the investor, the owner of the property for which the building permit is issued, and the holder of other real rights on that property, as well as the owner and holder of other real rights on the property that directly borders the property for which the building permit is issued.’).
‘You will not build!’
Considering this procedure, it seems like a bad joke or a fictional scenario in which an entrepreneur, after checking the planning documentation, decides to buy and purchases a plot directly next to the road managed by Hrvatske ceste, all to build a gas station and thus enhance the offer in that area, especially since there is no gas station nearby.
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The location is in Dalmatia, on the island of Vir, on the route to the municipal center. The municipality is quite small and the expected difference between traffic in season and off-season is drastic. It would be expected that this is something that the local government unit would welcome with open arms, without its own budget investment, the offer expands, a new municipal contribution payer is obtained, new workers are employed, etc. Instead, the local government unit (or whoever represents it, i.e., the mayor) after the issued building permit, which has become final and legally binding (and until then did not react although permits are not issued in a secret procedure, it had or should have had the information) organizes press conferences with the message ‘You will not build!’, municipal inspectors chase away workers preparing the construction site, ordering that machines, equipment, and everything necessary for any construction site be removed within two hours.
The legally issued and final building permit for the construction of a gas station has been systematically undermined by the local government on Vir, which wants to prevent construction. Now everything is at a standstill and the pumps will not be ready by the season, although it would be the only one in that part of the island.
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Then, a request is made for recognition of party status in order to file an appeal (which is rejected), a procedure for annulment of the building permit is initiated (unsuccessfully), after which a lawsuit is filed with the administrative court and everything is done to prevent construction, especially to prevent the new gas station from being put into operation before the tourist season of 2018, although there are no other pumps.
What is whose authority
At the same time, the local government unit requests the court to issue a temporary measure prohibiting construction according to the legally binding building permit ‘for the protection of non-monetary claims for the right to appeal’. Seeking legal protection against the decision of the relevant ministry (administrative lawsuit), seeking a suspensive effect of the administrative lawsuit – all of this is lege artis.
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However, when it is not a dispute regarding ownership, when it is not compensation for damages, when it is only a question of whether the permit was lawfully issued or not, this is not a matter for the regular court but for administrative bodies and the administrative court. For the regular court to issue such a temporary measure seems completely unimaginable, yet it happened and construction was prohibited for the protection of the local government’s right to appeal against the building permit although this right has already been exercised and verified up to the level of the administrative court, which has not yet decided and the procedure is ongoing! Meanwhile, the regular (municipal) court did not even set a bail for the one who requested and received the temporary measure in case it turns out that the applicant for security was not (or is not) right. However, regardless of the filed appeal, the decision on the temporary measure is enforceable and construction is suspended until further notice.
Is the disputed station or…?
It is not difficult to conclude how much damage has been caused to the investor. The execution of works has been contracted which is now at a standstill, and the contractor needs to be paid even though there are no works and it is questionable when they will be. If they are not paid, the contract needs to be terminated and compensation paid, but what if construction can start in a month – where to find a quality contractor before the season?
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At the same time, legal battles need to be financed, and since the value of the dispute is determined at more than 8,000,000 kuna, this means a very expensive lawsuit and a large cost for whoever loses, which could also be the local government unit. It is all the more strange that this local government unit itself prescribed (Article 10. 95.) that it is allowed to build in the road corridor what is in the function of the road and does not endanger traffic safety, and in both cases gas stations are explicitly listed, all according to the consent of the one who manages the road – in this specific case, it is a state road and those are Hrvatske ceste, not the local government unit.
To avoid any doubt, we do not enter at all into whether someone made a mistake when issuing the building permit or not. But the place and procedure in which these verifications are carried out are certainly and exclusively within the state administration and the administrative court, in some situations also the bodies of criminal prosecution, and certainly have nothing to do with municipal inspectors or press conferences or with ‘the people’s events’.
Author: prof. dr. sc. Hrvoje Kačer
