Appealing the General Development Plan and the public interest
Appealing the General Development Plan and the public interest[1]
The Aarhus Convention has priority over the existing Spatial Development Act (SDA)
Tanya Tocheva, Attorney at Law at Tocheva and Mandazhieva Law office
When it comes to legal building, the analysis usually stops at the question whether there is a building permit and whether the short term in which the limited circle of interested people can appeal has expired. The Spatial Development Act (SDA) stipulates that the building permits which have already taken effect (very often the effective date is written on the permit and the verification of its legality seems even easier) are not subject to abolishment and this rule seems great with regard to the investor’s interest and the idea for stability of the building process.
Does this happen in reality and what does it remain beyond the rule?
Fortunately in the practice of the Supreme Administrative Court (SAC) there is the general belief that such seemingly enforced and non-cancellable permit might turn out to be void if it does not substantially comply with a Detailed Development Plan (DDP) and the breach is so serious that the consequences are against the law (e.g. building permit for a protected territory). This practice complies with the European regulations in the sphere of ecology. It also requires the analysis of the building legality to go beyond the formal practice of verifying the enforcement of the permit and inevitably contain a verification of the whole ecological status of the project – the territory location, whether all ecological assessments are made when confirming the detailed development plans, including whether these plans give an account of the existence of protected territories that require special control procedure. As a result the stability of the building permit is affected by the ecology legislation which suggests a different concept of defining the circle of interested persons and respectively the appeal of the administrative acts. It’s the concept that there shall be a wide access to information and a possibility for appealing the acts which concern ecological issues.
The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in 1998 in Aarhus, Denmark, and ratified by Bulgaria in 2003, introduces these main principles. It also defines the transparency of the ecological issues as desirable concerning the work of all divisions of the government and indicates to the legislative bodies to apply the principles of the convention. Therefore, the existing SDA which sets out the General Development Plans (GDP) as unappealable, thatare the basis for creating the Detailed Development Plans, seems illogical. (The General Development Plans stipulate the general procedures and directions for construction and development of the specified territories which require a long-term planning. They do not apply directly to the separate properties and the permits that allow building on them – this is stipulated by the Detailed Development Plans. The decisions and orders approving the latter are subject to legal control.)
The argument that the public has the opportunity to appeal the stipulations of the detailed development plan subsequently does not give enough reasoning for the obvious discrepancy with the Aarhus convention because the stage at which the access to justice becomes available is not irrelevant. Unfortunately there is no practice of our Constitutional court which can confirm this concept.
The direction which the court practice will take on this issue will become clear after the forthcoming trial hearing of the case about the General Development Plan of the Municipality of Tsarevo by the five-member panel of judges in the Supreme Administrative Court. The final decision should take into account the priority of the Aarhus Convention over the explicit norms of our domestic legislation which excludes the ability to appeal the General Development Plans.
We hope that the result of the collision between the norms of the SDA and the logic of the European regulations and the international convention that was ratified by Bulgaria will take into account the modern trends of stable development which put an emphasis on the preservation of the available natural resources. Hopefully the rule that when there is a discrepancy between a domestic law or bylaw and an international agreement (which is ratified, promulgated and enforced pursuant to the constitutional procedure) the international agreement shall prevail, will apply.
If the opposite thing happens, it would jeopardize the synchronization of our national legislation with the modern trends and the corresponding normative framework. It is part of the referred to superficial method for assessing whether a building is legal (the presumption that it cannot be appealed against if it looks formally enforced) which should be left in the past and not be allowed in present.
The case of "Tsarevo"
The General Development Plan of Tsarevo has been appealed against by the Association of Parks in Bulgaria. The association claims that parts of it affect Nature Park "Strandja" which is not only a protected territory but also a zone protected by the European Network "Natura 2000". Furthermore, the plan violates several European directives -the directive on the assessment of the effects of certain public and private objects on the environment, the directive on the conservation of natural habitats and of wild fauna and flora and the directive on the conservation of wild birds. The last two regulate the "Natura 2000" network, and, therefore, require every plan or project for building in a protected zone (such as park "Strandja") to undergo a special assessment of conformability with the protected nature. In the beginning of August, a three-member panel of the Supreme Administrative Court rejected the appeal on the grounds that the Spatial Development Act stipulates that the General Development Plans are unappealable. The signed decision is accompanied by the dissenting opinion of Judge Georgi Angelov who thinks that the appeal is valid regardless of the SDA stipulation. The Association of Parks appealed before a five-member panel of the Supreme Administrative Court. The decision is pending.
The article does not constitute a legal opinion or advice related to concrete situation or entity. Due to its limited scope the same does not seek to be theme exhaustive. For more information on the touched upon questions you can contact the author via the followinge-mail:
Tocheva and Mandazhieva Law Office, 26, StoyanMihaylovski Str., fl. 5Page1
[1]The article is available in Bulgarian language here -