VUS considers that the provision of the Spatial Plan of the City of Zadar is unconstitutional

The problematic situation in Zadar regarding the reconstruction of a rental house was resolved by the High Administrative Court (VUS) of the Republic of Croatia in an interesting way. Namely, the local regulation had a legal basis, but the foundation for the repeal of Article 152, paragraph 1, item 3 of the Spatial Plan of the City of Zadar was found in the Constitution of the Republic of Croatia.

According to the reasoning of the VUS ruling, the house that entrepreneur Mirko (a fictitious name) wanted to renovate was less than three meters from the boundary. According to the Spatial Plan of the City of Zadar, a house must be at least three meters away from the boundary, but this applies to buildings constructed after the adoption of the Plan, while others are considered, to simplify, as existing state. Therefore, the existing state applies to Mirko’s house, so such a house can be renovated, reconstructed, but there is a condition: the neighbor(s) must give consent, except in the case of reciprocity (when both or all do the same, so consent is not required) and provided that the construction of openings (for example, windows) towards the neighbor is not allowed, while respecting other conditions prescribed by the Plan for that zone.

Discriminated Mirko

Mirko wanted to reconstruct the roof, ensuring that the footprint of the existing building would remain the same and that the reconstruction would not change the distance in relation to the neighboring property. He claims that he met all legal requirements for obtaining a building permit, but the administrative bodies still refused to issue it because he did not provide written consent from the neighbor of the boundary property, as his property was less than three meters from the boundary. Interestingly, his neighbor Slavko (a fictitious name) refused to give consent even though he had previously illegally built his house (albeit three meters from the boundary) and later legalized it.

Mirko could not obtain a building permit without Slavko’s consent, so he concluded that Article 152 of that subordinate regulation – the Spatial Plan of the City of Zadar – was discriminatory, which is why he submitted a request to the VUS for an assessment of its legality. The City Administration responded that everything was done in accordance with the Spatial Planning Act, i.e., that local self-government determines how far the distance from the boundary needs to be and what conditions must be met for issuing the necessary permits. However, the VUS indeed found that Article 152 of the Spatial Plan discriminates against Mirko, and potentially others. Namely, such a provision creates disproportion in the position of neighboring property owners in comparable situations, as the neighbor who built at the prescribed distance from the boundary can, according to the rules of reciprocity, reconstruct his building so that it approaches the boundary to the distance at which the neighbor’s building is located, without asking for consent for such reconstruction, which is not allowed for the neighbor whose building is closer than the prescribed distance from the boundary without the consent of the neighboring property owner. In other words, if Slavko (who later legalized his house located three meters from the boundary) decides to expand his house to be two meters from the boundary, he will not need Mirko’s consent because Mirko’s house is also two meters from the boundary (reciprocity).

Principle of Proportionality

Therefore, the provision, according to the VUS, which conditions the permissibility of reconstructing an existing building constructed at a distance from the boundary less than that prescribed by the Plan on the consent of the neighbor, is an disproportionately burdensome condition for all investors in the reconstruction of existing buildings and places them in a mutually unequal position.

Unequal treatment of investors in the application of spatial planning provisions is not in accordance with the principle of proportionality, further states the VUS, which is one of the general/universal legal principles. The Constitution of the Republic of Croatia (Article 16, paragraph 2) also stipulates that any restriction of freedom or rights must be proportional to the nature of the need for restriction in each case. Therefore, in the Zadar case, the VUS did not find an objectively justified and reasonable reason for the difference that was made, so it repealed the contested provision, which was not in accordance with the constitutional principle of proportionality.

POST SCRIPTUM

The Zadar City Administration adopted the Spatial Plan of the City in accordance with the Spatial Planning Act and determined the distance of buildings from the boundary accordingly. Since there is no legal definition regarding the distance of construction from the boundaries, local self-government units determine what the minimum is. Thus, in Zadar, the minimum distance of a building from the boundary must be three or five meters, depending on the zones. Therefore, the Law was not violated, but due to additional conditionality, the Constitution was violated, which is why the VUS decided as it did. And the Constitutional Court would very likely decide the same way if Mirko had approached it.