In The Matter Of An Application For Annulment Of The Regulation Of The Village Pozlovice

Original Language Title: ve věci návrhu na zrušení nařízení obce Pozlovice

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=63101&nr=475~2F2006~20Sb.&ft=txt

475/2006 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 1 May 2004. August 2006 in plenary in the composition of Vlasta

Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Jiří Mucha, Jan

Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška

April Wagner and Michael about the Minister of the interior design Mgr. František

The village of Bublana to repeal Regulation No 2/Pozlovice 2004 about the building closure



as follows:



I. the provisions of article 3, point 3 Regulation No 2/Pozlovice 2004

building closure, sounding: "exemption from the restrictions referred to in paragraph 1. 1. may

in justified cases, at the request of the Council of the municipality of grant. ',

date of publication of this finding in the journal of laws repealed.



II. In other parts of the proposal is rejected.



Justification



(I).



Recap of the proposal



1. The design pursuant to article 4(1). 87 para. 1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to

"the Constitution"), § 64 para. 2 (a). g) Act No. 182/1993 Coll., on the constitutional

the Tribunal, as amended, (hereinafter referred to as the "law on the constitutional

the Court "), pursuant to section 127 and section 124 para. 3 of Act No. 128/2000 Coll., on municipalities

(municipal establishment), as amended, (hereinafter referred to as "the law of

municipalities "), sent to the Constitutional Court 13. in March 2006, the Minister of the Interior

Mgr. František Bublan ("petitioner") sought the release of the award,

the regulation of the village Pozlovice No 2/2004 on the building closure

on the date of publication of the finding in the journal of laws repealed.



2. the applicant stated that the contested regulation was adopted by the Council

the village of Pozlovice at its meeting on 30 November. June 2004 and that all

legally prescribed conditions for its validity and effectiveness have been satisfied.

The regional authority of the Zlín region ("Regional Office") has made the challenge of

on 15 December. February 2005 No. 3165/2005 KUZL/LPO-Kr village Pozlovice to

remedy the situation. The Ministry of Interior came to the conclusion that the contested

Regulation is in conflict with the law, and therefore the action of 25 June. August

2005 j. ODK-977/1-2005 started administrative proceedings to suspend his

efficiency. Pozlovice is a village expressed on 29. September 2005, no non-j.

30/05/Che-1 so that it does not agree with the possible contradictions to the law and regulation

does not intend to rectify, and the Interior Ministry decision, j.

ODK-977-5/1-2005, dated March 22. February 2006, the effectiveness of the regulation of the village

suspended.



3. the applicant stated that, pursuant to section 11 (1) 1 of the law on municipalities, the municipality may, in

by the issue on the basis of the law and within the limits of the regulation

the municipality, if the law empowered to do so. According to § 61 para. 2 of the Act on municipalities

is a municipality in the issuance of the regulation of the municipality governed by the laws and other legal

the legislation, which also include municipalities, i.e. legislation. generally binding

decrees and regulations. In issuing the regulation must respect the limits of the

legal authorization. These statutory limits can be inferred in the case of

Act No. 50/1976 Coll., on zoning and the building code (the building

Act), as amended, and other special laws

the provisions relevant to the issues in question. According to the applicant

It follows that the regulation must be in line with other already

laid down by the legislation of the community and for the issue must respect the

the requirements for the scope, since the construction of the regulation issued by the

on the basis of legal authorization (section 33 (3) of the building Act) should be

be considered as a kind of spatial decisions under the building Act. This

conclusion follows both from the building Act, and of the Constitutional Court

SP. zn. PL. ÚS 9/04 [collection of findings and resolutions of the Constitutional Court (hereinafter referred to as

"The decision"), Volume 36, finding no 13; promulgated under Act No. 90/2005

SB.]. From the fact that the regulation of the village about the building closure is of particular

the type of zoning and planning decision expected stavebněprávními regulations

It is clear, however, the fact that the requirements for the display elements

Regulation should be inferred not only from the provisions of the legislation of the

concerning the decision on the closure of the construction, but also from the overall

the context of the law of the territorial management, detailing and distinguishing

individual types of land use decisions.



4. the Community has laid down by the contested regulation while Pozlovice conditions for

placement of the buildings and their implementation. The regulation of these terms is, however,

pursuant to the building Act the subject of another territorial decision, namely

the decision on the location of the building. The content of the decision on the location of the building

modifies the §4 for local development no. 137/1998 Sb.

implementing certain provisions of the building code, as amended by

amended (hereinafter "the Decree"). Pursuant to section 4, paragraph 4. 1

(a). d) this provision contains the decision to determine the location of the building

building land, conditions for the location of the building on it and for

elaboration of project documentation, including the scope and details of

processing. In the conditions for the location of the building in accordance with paragraph 2 of this

the provisions stipulate, inter alia, then health requirements,

the environment, the protection of urban and architectural

the values in the territory, including the determination of the type and colour of the external buildings (roofing material,

plaster, paint, etc.), and the requirements for height and placement

construction. Due to the fact that the regulation contains the conditions for

construction, down the height of the buildings and technology implementation and

the location of buildings, village vybočila its release from the bounds of the law conferred on the

material scope, as these conditions is entitled to provide only

the competent authority in the administrative building (territorial) control. This conclusion

the applicant is also supported by the opinion of the Ministry for regional development

as the central administrative authority in the area of spatial planning and

building law of 22 December 1999. July 2005 No. 21813/05-63/1527. And from the

of this opinion. It follows that the adoption of the contested regulation, it was

infringed the provisions of § 33 para. 3 building code regulations. 3

1 (b). a) and b) Regulation of the municipality. In the present case, moreover, it is a

the performance by the municipality, i.e.. the State Government and the municipality, therefore,

must strictly range of relevant legislation, as

According to the article. 2 (2). 3 of the Constitution, State power can be exercised only in cases, in

the limits and ways provided for by law.



5. In article 5(2). 3 (2). 3 of the regulation lays down that the derogation from the restrictions laid down in

paragraph. 1 may in justified cases, at the request of the Council of the municipality of grant

Pozlovice. The applicant argues that the power of the Council exceeds §

paragraph 99. 1 of the law on municipalities, as according to this provision in the

It is incumbent upon the Council by the municipalities to decide only if provided for by

the law. For this reason, it is also in violation of the provisions of the regulation

by law.



6. the appellant has pointed out above, that the provisions,

that has not been found to be illegal, they lack in itself of the legal

relevance; Therefore, he proposed to the Constitutional Court, the relationship to the regulation of the village

Pozlovice No 2/2004 on the building closure date of publication of the award in the collection

set aside the laws.



II.



The progress of the proceedings and the recapitulation of the observations of the parties



7. Pursuant to § 69 para. 1 of the law on the Constitutional Court the proposal was sent to the

a party. The municipality of Pozlovice in its observations of 21 October 2003. April

2006 raised a proposal to have the Constitutional Court rejected the proposal.



8. The municipality first confirmed Pozlovice claims the appellant, that were

met all the legal requirements for the validity and effectiveness of the contested

Regulation, and that this regulation is still in effect as adopted 30.

June 2004. The argument of the Interior Minister, the municipality said it disagrees with the

the statement about the alleged illegality of the regulation of the village that his release reportedly

"vybočila from the limits of the law conferred on the material scope of", as in the present

Regulation "specify the conditions for the placement of buildings and their

the realization of ", and such conditions shall be entitled to lay down only

the competent authority in land use management in land use, respectively, a decision on the location of the

construction.



9. in addition, the municipality Pozlovice drew attention to the shortcomings in the delivery of

each of the documents. Throughout the proceedings was represented by

the lawyer, who was left behind during delivery, and argued that

the case-law of the Constitutional Court (SP. zn. III. TC 138/2000, SP. zn. II. THE TC

157/03-a collection of decisions, volume 21, finding no. 53; Volume 33, no.

57). Decision of the Ministry to suspend the effectiveness of legislation

does a formal defect in that it does not contain guidance on the decomposition of [section 47 (1)

and 4 of law No. 71/1967 Coll., on administrative proceedings (administrative code), and section 179

paragraph. 1 Act No. 500/2004 Coll., the administrative code].



10. the regulation of the village in the article. 1 provides that its purpose is the protection of the territory

by placing and realization of buildings significantly disrupting the landscape character,

creating the conditions for sustainable development of the territory, in particular

Spa management and tourism in the territory of the concentration of recreation. This purpose

the regulation does not deviate from the limits imposed in paragraph 32. 1 (b). (d))

the building Act and section 7 of the implementing decree. Based on the wording of the applicable

the land use plan of the municipality of Pozlovice and "in the spa can be

only allowed such buildings, plant and equipment, which does not violate the

Spa climate, vegetation, hydrological conditions, peace and aesthetic

the appearance of the Spa places "(paragraph 3.8, p. 35 text messages of the territorial


the plan).



11. In this context, the municipality also stated that the Municipal Council of the municipality

Pozlovice was approved by resolution No. 21/I/2005/IP of 10 June 1999. February

2005 the intention of the new master plan residential unit, Pozlovice

whose aim is, inter alia, to refine the conditions to landscape character protection, and

Thus the recreational nature of the village. The regulation on building closure, therefore,

limited construction activity, which could prevent the future use of

the territory or organization by making spatial planning

documentation, which is fully in line with the definition of the objectives of the prohibition or restriction

activity through the Institute of construction according to § 7 (2). 1

(a). c) implementation decrees. The municipality of Pozlovice expressed the belief that the

the contested regulation contains all the conditions laid down in the provisions.

Referred to the article. 3 point 1 a) and b) of the regulation, where a completely certain,

a clear and comprehensible manner identified limitations (conditions) for the

construction activities that could prevent future land use or

his organization, according to the prepared territorial planning documentation.



12. The municipality Pozlovice pointed to the fact that the Minister of the Interior on your

the proposal, according as a Ministry in the decision to suspend the effectiveness of the

the regulation of the village, completely overlooks that the territorial decision about the location of the building,

the requirements are defined in the provisions of section 4 of the Ordinance, set

conditions for the location of specific individual constructions as defined

proposal on the issue of zoning and planning decision (which must contain all the

information according to § 3 of the implementing Ordinance). Planning decision or regulation of the

building closure, by contrast, lays down general rules or prohibitions

relating to a specific type of possible future construction activities in the territory.

This is the case even in the case of regulation of the municipality. This regulation

unless otherwise provided in the conditions for placement of any particular construction (which is

actually reserved land zoning decision on the location of the building), but as a

generally binding legal regulation, community, issued on the basis of the authorization (section 33

paragraph. 3 the building Act), defines the general binding rules for case

a specific type of future construction activity in the defined territory.



13. For the above reasons, in particular because the Home Secretary condones

the difference between the contents of the regulation of the village about the building closure on

indeterminate number of possible structures of a certain type and the content in the future

Zoning decision, considers the arguments contained in the draft Community

Minister of the Interior.



14. In that part of the proposal, in which the Minister challenges the wording of article as illegal.

3 section 1 of the regulation of the village due to exceeding the competence of the Council of the municipality in accordance with

the provisions of § 99 paragraph 2. 1 of the law on municipalities, the municipality shall be considered for no doubt

the Council of the municipality is entitled to decide to change any of it issued by the

of the regulation. The content of such regulation may be a modification of the regulation on the

building closure, which corresponds to the concept of a content point of view "exception to the

the restriction ". To issue such a regulation may initiate any person,

for example, a potential client. The municipality acknowledged that the wording contained

in the article. 3 section 3 of the regulation is imprecise, because a change of the regulation and the

or de facto to the granting of exceptions can occur only in the manner described

(approval of the new regulation of the village), and not for example. by decision

Council in the administrative procedure. In view of the above, as well as

to define the powers of the Council of the municipality in the Act on municipalities, however, the municipality thinks

even the provisions of the exemption is not necessary, as there is a

the possibility of his legal and thus constitutionally consistent interpretation (a reference to the

the findings of the Constitutional Court, SP. zn. PL. ÚS 15/98, ECR, volume

13, finding no 48; promulgated under no. 83/1999 Coll., or SP. zn. PL. ÚS 4/99,

Collection of decisions, volume 14, finding no. 93; promulgated under no. 192/1999

SB.).



15. Beyond the grounds for the proposal of the Interior Minister a municipality Pozlovice

drew attention to the fact that, unlike "law regulation

the village of Pozlovice No 2/2004 on the building closure "and the opinions of the Ministry of

for local development of 22 March. July 2005 No. 21813/05-63/1527

neargumentuje Minister of the Interior in the proposal submitted to the Constitutional Court the alleged

the nature of the regulation with the objectives and intentions, expressed in spatial planning

the zoning plan zoning plan LLU Zlín agglomeration (or regulation

No 87/1994 Coll., which announces the binding part of the master plan

large territorial unit of the Zlín conurbation, as amended

regulations), specifically with the schedule contained in the local lanes of the new

HIGH VOLTAGE lines. The village drew attention to the fact that the regulation in no way

the implementation of these management does not (not exclude), only for

their construction provides for the limiting conditions in order to protect the development of the

its territory. The substantive correctness of the procedure, the village of Pozlovice protection

landscape against the buildings of such leadership, unless they meet in the

the regulation of the village referred to restrictive conditions, has support in the decision of the

White Carpathians PROTECTED LANDSCAPE AREA administration of 30 November 2005. August 2005 No.

BK/1526/2003/ext-II, which was confirmed by the Ministry of

the environment of 21 June. March 2006 no. 570/2703/05/06-Do. From

These decisions and documents cited in them at the same time shows that

There are technically feasible variants of energetic leadership that

meet the restrictions contained in the regulation of the village and at the same time corridor

defined in the land use plan for LLU Zlín agglomeration.



16. Village Pozlovice considered that the contested Regulation No.

2/2004 was issued the law laid down by the law and in the manner required by

the form, within the limits defined by the material scope of the law and in accordance with the purpose,

to which it has been entrusted to such competence (the Constitutional Court finding SP. zn.

PL. ÚS 63/04, ECR, Volume 36, finding no. 61; promulgated under the

No 210/2005 Coll.). Raised a proposal to have the Constitutional Court has rejected a proposal from the Minister for

the Interior on the suspension of the effects of the contested regulation (sic – Editor's note).



17. Pursuant to § 69 para. 2 of the Act on the Constitutional Court the proposal was also sent to the

the Ombudsman, the Constitutional Court, however, said that

does not enter into the proceedings; Therefore, the intervener.



18. The oral proceedings in the case, having regard to the consent of all participants and

intervention with the abandonment of negotiations has been held (article 44, paragraph 2,

the law on the Constitutional Court).



III.



The diction of the contested legislation (including clerical inaccuracies)



"The regulation of the VILLAGE POZLOVICE No 2/2004 on the BUILDING CLOSURE



The Council of the municipality in accordance with § 33 Pozlovice issues para. 3 of Act No. 50/1976 Coll., on the

land use planning and building regulations, as amended by later legislation

regulations and pursuant to articles 11 (1) 1 and paragraph 102. 2 (a). (d)) of law No.

128/2000 Coll., on municipalities, as amended by later regulations on the

the basis of its resolution No. 171/2004 of 30 March 2004. 6.2004 this Regulation:



Article 1



Introductory provisions



1. the regulation lays down the scope of the construction in the cadastral territory of

Pozlovice, village.



2. The purpose of the construction is the protection of the territory before the attacks and

the realization of buildings significantly disrupting the landscape character, creating the conditions

for the sustainable development of the territory, especially the development of the spa industry and

tourism in the territory of the concentrated recreation.



Article 2



The definition of the territory of the



Building enclosure prejudice to these lands in the land registry and the village of Pozlovice

Parc. No according to PK: 2242/1, 876, 877, 878, 2193/1, 908/1, 908/2, 908/3,

908/4, 910, 912/5, 907, 908/8/1, 907/2, 915, 967/8, 967/969/5, 6,

967/4, 967/3, 967/969/1, 2, 1011, 1005, 1006, 1008, 1009, 1000, 1003,

998, 995, 987/2, 985/1, 1088/1, 2158, 2157, 2136, 2137, 2135, 2132,

2100, 2102, 2105, 2174, 2096, 2092, 2093, 2091, 2089, 2090, 2176, 2045,

2047/1, 2047/3, 2022, 2026/1, 2019, 2020, 2021, 2015, 2014, 2011, 2010,

2008, 2007, 1997, 1996/2, 1093, 1094/1, 1112/1, 1100/1, 1118, 1114,

1127, 1128, 1142/1143, 1144, 1, 1146, 1148, 1153/1/2, 1248/1, 1246/1,

1246/2, 1246/3/4, 1246, 1252/1,/2, 1243 1245, 1250, 1252, 1242/1254, 2,

1239/16, 1239/15, 1241, 1253/1, 1256/2, 1259, 1260, 1261, 1264, 1263,

1267, 1270/1, 2189, 1304/3, 1304/2, 1304/1305/2, 3,1305/2, 1307, 1308,

1309, 1312/3, 2185, 1313/6, 318/4, 318/5, 318/320/6, 7/8, 318, 318/9,

311/10, 311/9, 311/7, 314/315/16, 15, 14, 314/314/13, 311/6,

311/6.708/2, 2231/1, 314/4 2184/1, 300, 299, 298, 293/1, 293/4, 293/2,

276, 294, 295, 296, 297, 270, 271, 2179/2, 235, 238, 240, 188, 185.



Article 3 of the



Scope of the prohibition or restriction of construction activities



1. In the above defined territory is limited construction of energy

management technologies, disrupting the landscape character. These buildings can be

in the above Territories to place only when the following

terms and conditions:



the forested land) must not be the support points of the energy

leadership is more than 15 m



(b)) in the open landscape, the building energy management placed under the ground



2. building the rack gear is not prohibited nor restricted the implementation of maintenance

the works.



3. A derogation from the restrictions laid down in paragraph 1. 1. may, in justified cases,

grant at the request of the Council of the village.



Article 4 of the



Final provisions



This regulation having regard to the urgency of general interest shall take effect and

force on the date of its publication.



Article 5



Regulation (EEC)




Regulation of the municipality Pozlovice No. 1/2004 on the building closure.



Deputy Mayor



round stamp "



IV.



The conditions of the locus standi of the applicant



19. The Constitutional Court first dealt with the question of whether the claimant-

Minister of the Interior-entitled application for annulment of the contested provisions.

Prima facie, concluded positive. According to § 64 para. 2 (a). (g))

the law on the Constitutional Court, the Minister of the Interior shall be entitled to submit a proposal to

repeal any law or its individual provisions

According to the article. 87 para. 1 (b). (b)) of the Constitution, in the case of an application for revocation

legal regulation of the municipality.



20. the Minister of the Interior Design was preceded by proceedings under

Title VI of the Act on municipalities. The regional authority of the Zlín region called on the 15. February

2005 the municipality Pozlovice under no. 3165/2005/LPO-Kr to rectify the situation.

Regional Office found in violation of the law, in particular, of the provisions regulating the

scope of the prohibition or restriction of construction activity. Due to the fact that

party to the proceedings to challenge the regional authority has not completed the remedy,

Regional Office on 11 July. in May 2005, the Ministry of Interior design at the

the suspension of the regulation.



21. On the basis of the documents submitted, the Ministry of Interior came to the

the conclusion that the contested regulation is contrary to the law, and therefore the measures

of 25 June 2002. August 2005 No. ODK-977/1-2005 launched administrative proceedings in

stuff the suspension of its efficiency; notice of initiation of the procedure was the village

delivered on 29. August 2005. Because the municipality of axle nezjednala, Pozlovice

The Interior Ministry decision No. ODK-977-5/1-2005 dated May 20. February

2006 the effectiveness of regulation to suspend; the decision was the municipal office

delivered to 23. February 2006 and came into force on this day. Pursuant to § 124

paragraph. 3 and § 127 paragraph. 1 of the law on municipalities was Minister of the Interior no later than

within 15 days of the suspension of regulation of the municipality to submit a proposal for its

the cancellation of the Constitutional Court. The time limit under this provision expired on the date of

March 10, 2006, Interior Minister filed a timely an appropriate proposal, since the date of

March 10, 2006 a consignment was brought to the post and to the constitutional

the proposal was delivered to the Court 13. March 2006.



22. the proposal for the abolition of the regulation of the village was under section 124

paragraph. 3 and § 127 paragraph. 1 of the law on municipalities and § 64 para. 2 (a). (b)) of the Act

on the Constitutional Court filed by an authorized person.



In the.



Constitutional and legal conformity of the legislative process



23. According to the provisions of § 68 para. 2 of the Act on the constitutional court assesses the

The Constitutional Court in deciding the content of the Act or other legislation

from the point of view of their compliance with the constitutional laws, and if it is about another

legislation, whether or not the laws, to determine whether they have been accepted and published in the

the limits of the Constitution laid down the competence and constitutionally prescribed way.

The provisions of article. paragraph 79. 3 and article. 104 of the Constitution, in so doing, confers on the procedure for

the issue of legislation, of the municipality of legislation.



24. In this regard, of the minutes of the meeting of the Council of the municipality of Pozlovice June

June 30, 2004, the Constitutional Court found that it was present at the meeting 5

members of the Council and that the contested regulation was approved unanimously. Because

the Council of the municipality had 5 members, of whom they were all present, can be

held that the contested regulation was adopted in a qualified manner

(article 101, paragraph 2, of the Act on municipalities). Furthermore, the Constitutional Court found that the contested

the regulation has been properly posted on the notice board of the local authority

Pozlovice day 2. July 2004 and captured on 20 April. July 2004, so

came into effect on 2 February 2005. July 2004 (section 12, paragraph 2, of the Act on municipalities).

The Constitutional Court notes that legislation was adopted and issued

in accordance with the law on municipalities, i.e.. constitutionally prescribed way.



Vi.



Reviews of the Constitutional Court



25. After the Constitutional Court could deal with what things, IE. examined,

whether the content of the contested regulation proposal is or is not in accordance

with the valid legal regulations of the municipality and that is entitled to the legal regulation of the village

for non-compliance with other legislation to cancel.



26. The Constitutional Court notes that according to the article. 87 para. 1 (b). (b)) of the Constitution

has the power to decide on the abolition of other laws or their

individual provisions, if they are in conflict with the constitutional order or

by law.



27. as regards the legal provisions issued by the authorities of the territorial Government

(the municipalities and the region), it is necessary to further distinguish whether it is a performance of State

Administration, or whether the law a manifestation of the constitutional law on the territorial

self-government. The Constitution in article. 105 allows the Law entrusts to the authorities of the territorial

Government and the performance of State administration; then a municipality carries out. the transferred

the scope of the. The competence of municipalities to legislate in the sphere of the migrated

the scope of the article is founded. paragraph 79. 3 of the Constitution. Under section 11 (1) 1

the law on municipalities as the village is in the form of regulation. According to § 61 para.

2 (a). and the Act on municipalities) while the municipality governed by the laws and other legal

the regulations, which implies that the regulation must be the laws and other

law in accordance. In addition, the power to issue legal

regulations in the sphere of competence of the individual in the form of generally binding

decrees is based on other provisions of the Constitution, article. paragraph 104. 3 (cf.

also find Constitutional Court SP. zn. PL. ÚS 28/95, ECR,

Volume 4, no. 85, p. 301; promulgated under no. 2/1996 Coll.). Pursuant to §

35 para. 3 (b). and) of the municipalities the municipality for issuing General

binding decrees governed only by the law, and not already in other legal

regulations. In a separate area of competence, argues the so-called.

the reservation of the law (article 104, paragraph 1, of the Constitution): the separate responsibilities of municipalities and

regions can be constitutionally Conformal manner by a law to regulate

that has at least the force of law, rather than the standard lower legal force.



28. the Constitutional Court it follows a clear conclusion that could not be

responsible for the assessment of compliance of generally binding decrees of the village with other

legislation that has less legal force than the law, and would not be

for the possible contradiction with generally binding legal regulation podzákonným

notice to cancel.



29. in the present case, this is a performance by the municipality, i.e..

the State Government and the municipality must therefore strictly range

the relevant legislation, since according to the article. 2 (2). 3 of the Constitution can be

State power exercised only in cases, within the limits and ways that

provided by law. However, the contested legislation is regulation ^ 1.

According to the applicant, the contested regulation in violation of § 33 para. 3

the building Act and section 7 of the implementing decree implementing some

the provisions of the building code. According to the text of the provisions of § 33 para. 3

the building Act "the municipality and the region of the protected area or building may

the closure to declare by regulation of a municipality or County regulation ". The village of regulation

building closure must respect the requirements for the content definition

building closures, as the regulation issued on the basis of legal authorization section

33 para. 3 the building Act is to be regarded as a kind of spatial

decisions under the building Act.



30. The provisions of § 32 para. 1 (b). (d)) to the building Act and section 7 of the

the implementing decree, it follows that the purpose of the Institute is building closures

mainly to protect important interests in the territory, or future land use

or his organization, according to the prepared territorial planning documentation. From

This basic definition, as well as of the requirements of the territorial adjustment

the decision of building closure under the provisions of section 7 of the implementing decree and

Thus the limits of acceptable content is according to the construction of the village should be

be based on even if the announcement of the construction of the village by way of regulation

According to § 33 para. 3 the building Act, because no law

does not include special treatment in this respect. You can also refer them to find

The Constitutional Court in case SP. zn. PL. ÚS 9/04, ECR, volume

36, finding no 13; promulgated under no. 90/2005.



31. Article 1, paragraph 1. 2 of this regulation, the contested design stipulates that

the purpose of the construction is the protection of territory before placing and realization

buildings significantly disrupting the landscape character, creating the conditions for a

sustainable development of the territory, in particular the development of health resorts and tourism

territory focused recreation. The purpose of the regulation does not deviate from the limits of the

laid down in the provisions of § 32 para. 1 (b). (d)) to the building Act and section 7 of the

the implementing decree. Based on the wording of the applicable land use plan of the municipality

Pozlovice, according to which the spa can be enabled only

such buildings, plant and equipment, which does not violate a spa climate,

vegetation, hydrological conditions, peace and aesthetic appearance of the Spa

space (article. III. measures related to the construction of the Spa places section

8, page 35 the text portion of the zoning plan). The Municipal Council of the municipality of Pozlovice

approved by resolution No. 21/1/2005/IP of 10 June 1999. February 2005 the intention of the

the acquisition of new land-use plan of settlement Department Pozlovice, aiming to

It is, inter alia, to refine the terms of protection of landscape character, and thus the

the recreational potential of the village, within the meaning of the content of the building

closures. The regulation on building closure, therefore, limits the construction activity,

that could prevent the future use of the territory or organization


According to the prepared territorial planning documentation, which is fully in line

the definition of the objectives of the prohibition or restriction of activities through the Institute

building closures under the provisions of section 7 of the implementing decree.



32. the applicant in its proposal overlooks, as well as a Ministry in the

the decision to suspend the effectiveness of the regulation, that the zoning and planning decision

about the location of the building, whose requirements are defined in section 4

the implementing decree, always lays down the conditions for the location of specific

each stage of the building design to release a zoning decision that

must contain all the information referred to in section 3 of the implementation decrees. The territorial

decision or regulation of the municipality about the building closure, by contrast, provides for the

General restrictions or prohibitions relating to a specific type of possible future

construction activity in the territory. This is the case even in the case of the present regulation

of the village. This regulation lays down the conditions for the placement of any

a specific building, but as a generally binding legal regulation, community, issued by the

on the basis of legal authorization according to § 33 para. 3 the building Act,

It defines the general binding rules, for the case of a certain type of future

construction activities within a defined territory.



33. the Constitutional Court States that the municipality may, by the issue of the

under the law and within the limits of the regulation of the village according to the provisions of § 11 (1)

1 of the law on municipalities, is to do so by law empowered. According to § 61 para. 2

the law on municipalities is a village in the issuing of laws and regulation in other

the legislation, which also include municipalities, i.e. legislation. in General, the

binding decrees and regulations. In issuing the regulation must respect the

the limits of legal authorization. These legal limits should be in a given case

inferred from building law and other specific legislation

relevant to the issues in question. A decision or a regulation on the

building closure must explicitly set the scope limitations or

prohibition of construction activities; This conclusion follows from the fact that the regulation

the village of construction closure is a special kind of zoning and planning decision

the projected stavebněprávními provisions and indicates also that

the requirements on the content requirements of regulation needs to be inferred not only from the

the provisions of the legislation governing the decision about construction

closure, but also from the overall context of urban management law

exactly defining and distinct individual kinds of territorial

decision.



34. However, the Constitutional Court concluded that the contested regulation

Pozlovice No 2/2004 on the building closure [article 3, point 1 (b)) and (b))] is not

with § 33 para. 3 construction of the Act and section 7 of the implementing decree in

conflict. The Constitutional Court must regard the village Pozlovice regulation

the renowned building bond from the objectives and goals of spatial planning

not deviate. It would be a denial of the purposes of building closures, if would have to

be substantively as well defined already in the territorial plan. Construction of closure can be

even established for the territory in which the territorial plan of construction permits

for example. as a temporary measure, pending the approval of the more detailed spatial

planning documentation for the territory. Between the regulation of building closure

and in General, the Ordinance is not binding relationship law

lower legal force and legal regulation, greater legal force. Legal methods

in both cases, the regulations are not the same. When the announcement of the building

closures, it is necessary to examine whether the building ban in the light of the goals and objectives

land-use planning. Assessment of compliance with the objectives and intentions of the territorial

planning of a given territory does not exhaust the issuance of zoning and planning decision.

This compliance must be considered when making a decision to continue at the lower

floors of abstractness. For example. even when deciding on the issue of building

permits to build the concrete construction of the Building Authority must deal with

the question of whether to allow such construction can be given to the objectives, aims and

spatial planning documentation, IE. and due to the generally binding

the Decree, which was approved by the zoning plan.



35. the Constitutional Court decided to partially meet the Minister of the Interior and design

annul the contested provisions of article. 3 section 3 of the regulation of the village for the conflict with the article.

paragraph 79. 3 of the Constitution, according to which municipalities can issue regulations, only if they are

as specifically mandated by law and within the limits of such law. Without

a specific mandate in the Act cannot issue a regulation, a village

the scope of the. The issue of regulation of the municipality shall be entrusted to the Council of the municipality and in accordance with § 102

paragraph. 2 (a). (d)) of the Act on municipalities as to the reserved powers. In the article. 3

section 3 of the regulation lays down that the derogation from the restrictions laid down in paragraph 1. 1

may in justified cases, at the request of the Council of the municipality of grant.

The Constitutional Court agrees with the applicant that the competence of the Council exceeds the

§ 99 paragraph 2. 1 of the law on municipalities, as according to this provision in the

It is incumbent upon the Council by the municipalities to decide only if provided for by

the law. The Constitutional Court notes that the regulation of the village in the article. 3 point 3 of the community

while avoiding expanded its permissions. In the present case, moreover, it is a

the performance by the municipality, i.e.. the State Government and the municipality, therefore,

should be within the limits of the relevant legislation, since according to the article. 2

paragraph. 3 of the Constitution, State power can be exercised only in cases and within the limits of

ways provided for by law. For this reason, it is also quoted

the provisions of regulation in violation of the law and the Constitutional Court decided the article.

3 section 3 of the regulation of the village Pozlovice No 2/2004 on the promulgation of building closures

for the part of cadastral territory Pozlovice cancel the date of publication of the award in

The collection of laws.



36. The alleged formal defects in the management of which argued the municipality Pozlovice

as a participant in the proceedings against the applicant, cannot justify a conclusion about

the illegality of the contested proceedings and judgments as

the constitutional law of the plane; for these reasons, the Constitutional Court further

nepřezkoumával.



37. The Constitutional Court therefore finds that the contested regulation in other

parts is not in violation of § 33 para. 3 the building Act, section 7 of the implementing

Ordinance nor article. 2 (2). 3 of the Constitution. After completion of the procedure, therefore, the constitutional

the Court concludes that the grounds for revocation are not fulfilled, the regulation of the village Pozlovice

No 2/2004 on the announcement of the construction portion of the cadastral territory

Pozlovice and, therefore, the proposal the work pursuant to section 70 para. 2 of the Act on the constitutional

the Court has rejected and the work pursuant to section 70 para. 1 of the law on the Constitutional Court annulled the

the provisions referred to in the operative part I.



The President of the Constitutional Court:



JUDr. Rychetský in r.



1 Act empowers a municipality and the County to declare construction regulation

municipality or County regulation, IE. in the form of legislation (article 33, paragraph 3,

the building Act). Otherwise, the construction bond planning

issued in territorial control by the competent Building Authority under section 32 and subs.

the building Act. If the construction bond took the form of a territorial

the decision is subject to review in the administrative procedure and subsequently the Court of

the power of the. However, if the building enclosure of form of the law, the person

whose ownership or other rights to land or buildings on them

the building can be bonded directly affected, have significantly more difficult because the

option, as against such intervention to defend their rights. The constitutional

on the edge of the Court notes that in this proceeding cannot ústavností § 33

paragraph. 3 the building Act to deal with, since this provision being challenged

It was not.