SAC: YOU CANNOT AVOID CHANGING THE ZONING PLAN

Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský, JUDr. Martin Mezenský

The Supreme Administrative Court (SAC) in a decision from December 11, 2020, Ref. No. 5 As 279/2019-27 has dismissed a cassation appeal against the judgment of the District Court in České Budějovice. That judgment found it correct that the building offices had rejected an application for permission to change the use of a structure.

The appellants unsuccessfully applied for permission to change a structure’s use from an industrial building to a stand-alone house. In 1992, the appellants had purchased from the municipality of Blatná a structure on the edge of a defunct abattoir area, referred to as a “stand-alone house” in the sales contract. However, according to the effective zoning plan of the municipality, the building was located in a developed area, on “VN – non-disturbing manufacturing and enterprise” land, which only allows for temporary accommodation (e.g. for employees of the enterprise), but not for permanent housing, and which was also listed as an industrial site in the Land Register. Yet the structure itself met all the requirements for permanent housing, and the original purpose of the area had no impact on it anymore.

The SAC upheld the conclusions of the administrative authorities and the District Court: the effective zoning plan and the data in the Land Register record the legal status of real estate, and are binding both on its owners and the municipality. Sec. 126 Par. 3 of the Building Act does not permit a change in the structure’s use that contradicts the legal status of the property. This is also not changed if the building is in fact permanently used for living, nor if the area is not used for production anymore.

The decisive factor in assessing whether the change of the structure’s use complies with the urban planning documentation is the functional purpose of the territory allowed by the urban planning documentation, not the actual status of the area. According to the SAC, the fact that the building had not been used for its original purpose for a certain period does provide the appellants the right to permission to change the structure’s use to permanent housing.

Nor was it relevant that the municipality had sold the structure to the appellants as a “stand-alone house”. As it belongs to the area of private law, the sales contract has no impact on the purpose of the house according to the public law criteria, which are crucial for changing the structure’s use.

In conclusion, the SAC added two recommendations, with which we entirely agree. Before buying real estate, it is necessary to always verify not only its actual status but also its legal status. If the actual use contradicts the effective urban planning documentation, the only option is to initiate a change of the structure’s use so that it can be used according to the owner’s needs. There is no other way to achieve the desired result.

The SAC’s decision is available here.

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