The Supreme Administrative Court of the Czech Republic criticizes the passivity of authorities in (not) initiating proceedings for removal of a building

Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský and Mgr. Ing. Tomáš Rendl

In a recent decision of 14 October 2021, No. 4 As 90/2021-51, the Supreme Administrative Court stated that the Building Act does not provide building authorities with scope for the application of administrative discretion as to whether or not to initiate proceedings for the removal of a building. Section 129(1) of the Building Act contains clearly defined criteria which, if fulfilled, must always lead to the initiation of the relevant proceedings.

In its decision, the Supreme Administrative Court also addressed the standing to bring an action for intervention in cases where the building authority fails to initiate the procedure for the removal of a building. In deciding this case, the SAC applied the criteria it had previously set out in its ŽAVES decision, which may lead to the possibility of bringing an action for intervention even in the event of inaction by the administrative authority.

We therefore summarize below the basic facts and legal conclusions relating to the case before the Supreme Administrative Court.

The Transport Undertaking of the City of Prague (the “Plaintiff”) sought protection against the unlawful intervention of the Construction Department of the Prague 7 Municipal District Office (the “Defendant”), which was to consist in its failure to initiate proceedings for the removal of the building pursuant to Section 129(1)(f) of the Building Act.

The Plaintiff is the owner of the land on which a building owned by a third party stands, which was permitted by a supplementary building permit as a temporary building only until the final development according to the zoning plan. According to the applicant, that final development should already have taken place, but at the same time the nature of the building was never changed to a permanent structure. According to the applicant, this fulfilled the condition for ordering the removal of a temporary building within the meaning of Section 129(1)(f) of the Building Act, according to which the building authority must order the owner of a temporary building whose duration has expired and no change of use has been authorized to remove the building. The Defendant, however, did not initiate proceedings under the above-mentioned provision of the Building Act on the grounds that, in its opinion, the specified duration of the building had not yet expired.

The Municipal Court dismissed the application on the grounds that the applicant did not have any standing to bring the action. The Municipal Court held that the applicant did not have a public right of action for bringing an action for interference within the meaning of Article 82 of the Code of Administrative Procedure.

The applicant lodged a cassation complaint with the Supreme Administrative Court (the “SAC”) against that decision of the Municipal Court. The content of the cassation complaint was the applicant’s claim that, if the legal prerequisites for initiating proceedings for the removal of a building pursuant to Section 129(1)(f) of the Building Act are fulfilled and the Defendant is inactive, it thereby interferes with the rights of the applicant as the owner of the land on which the building stands. By failing to do so, the Defendant is curtailing the applicant’s public subjective right to ensure that the unlawful situation with regard to its land, which the removal proceedings are intended to remedy, does not continue.

In deciding on the appeal, the SAC applied to the present case the conclusions of the judgment of the Extended Chamber of the SAC on 26 March 2021, No. 6 As 108/2019-39, No. 4178/2021 Coll. of the SAC, in the ŽAVES case (the “ŽAVES Decision”). Although the Municipal Court stated in the grounds of the judgment under appeal that the ŽAVES Decision was not relevant to the assessment of the present case, as the subject of the assessment in that case was not an unauthorized construction, as in the present case, the SAC did not agree with this conclusion of the Municipal Court. The SAC stated that the main thrust of the ŽAVES Decision was the assessment of interference with the public subjective rights of the land owner (in this case, the applicant) by the existence of a building unlawfully located without a public permit, and in the opinion of the SAC, this situation could potentially have arisen even before the filing of the interference action.

Section 129(1)(f) of the Building Act states that the building authority shall order the owner of a temporary building whose specified duration has expired and no change in use has been authorized to remove the building. The Municipal Court stated in its reasoning for dismissing the action that the building authority applies its administrative discretion when deciding whether to (not) initiate the removal proceedings; in other words, the Municipal Court stated that the initiation of the removal proceedings depends solely on the discretion of the building authority. However, the SAC did not share the Municipal Court’s view. It stated that if the conditions contained in Section 129(1) of the Building Act are fulfilled, the building authority is obliged to initiate proceedings in every case. The SAC expressed a similar view in the ŽAVES Decision (para. 65): “Section 129(2) of the Building Act does not give the building authority discretion whether or not to initiate proceedings for the removal of a building. On the contrary, according to the first sentence of the provision just quoted, the building authority must initiate proceedings if the conditions defined in Section 129(1)(b) [of the Building Act] are met.”

In the present case, however, the SAC could not decide on the merits of the case, since the Municipal Court had not made a decision on the merits either, as it merely dismissed the action by order due to the alleged lack of standing of the applicant. The SAC stated that a decision on the merits of the case would exceed its statutory jurisdiction under Article 109(3) of the Code of Civil Procedure. In deciding on the applicant’s appeal, the SAC thus focused only on the question of the admissibility of the action, i.e. whether the applicant had standing to bring the action.

The applicant was the owner of the land on which the building, which had been authorized as a temporary structure thirty years earlier, stood. Since no decision was ever taken to extend the duration of the building or to convert it into a permanent structure, it remained a temporary structure. The SAC therefore found that in the present case, the applicant’s public subjective rights could potentially have been infringed by the failure to remove a temporary structure whose duration had already expired.

Given that the applicant had exhausted all available means of defending its rights before bringing an action for interference, the SAC found that the applicant had fulfilled all the conditions for bringing an action against an unlawful interference by an administrative authority, which it had previously established in the ŽAVES Decision. The applicant had first of all alleged that the administrative authority’s failure to exercise its official authority could have directly interfered with the applicant’s public subjective rights, and the applicant had sufficiently specified the administrative authority’s misconduct in question. The second set of conditions laid down in the ŽAVES Decision, consisting in the subsidiarity of the action for interference, was also fulfilled in the present case. Prior to bringing an action for intervention, the applicant had first initiated proceedings for the removal of the unauthorized construction within the meaning of Article 42 of the Administrative Procedure Code and subsequently sought to initiate proceedings by means of a measure against inaction under Article 80(2) of the Administrative Procedure Code.

In our opinion, the SAC was therefore correct to annul the Municipal Court’s order rejecting the action and to refer the case back to it for further proceedings. In the reasoning of its judgment, the SAC stated that the Municipal Court is first obliged to verify whether the applicant has in fact properly exhausted all available means of protecting its public subjective rights, and furthermore, on the merits of the case, to assess whether or not there are grounds for initiating proceedings for the removal of the building pursuant to the provisions of Section 129(1)(f) of the Building Act. If the Municipal Court finds that there are grounds for initiating proceedings for ordering the removal of the building, it must order the Defendant to initiate proceedings pursuant to Section 129(6) of the Building Act. If it finds that the grounds for the initiation of the proceedings in question by the Defendant have not been met, it must dismiss the action for interference.

The aforementioned decision of the SAC on the cassation complaint thus provides increased certainty to persons whose rights may potentially be affected by the existence of a “black” (unauthorized) building in their neighborhood. In our opinion, the finding of the SAC that the initiation of proceedings for the removal of a building is based solely on objective facts and not on the administrative discretion of specific officials at the building authorities is fully in line with the basic principles of administrative law. However, in the case of the existence of a black building, all the relevant steps must be taken in the correct order and within the time limits laid down by law. We recommend inviting experts to do this from the outset in order to protect the rights of the persons affected by the unauthorized building as far as possible.

The SAC decision is available here.

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