In The Matter Of An Application For Annulment Of The Regulation Of The Village Lipnik No 1/2003

Original Language Title: ve věci návrhu na zrušení nařízení obce Lipník č. 1/2003

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90/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 25 April. January 2005 in plenary in the composition of JUDr.

Francis Skinner, JUDr. Turgut Güttler, JUDr. Pavel Holländer, JUDr.

Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil,

JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Výborný,

JUDr. Elisabeth Wagner and JUDr. Michael April on the proposal of the Minister of

the Home Office Mgr. Stanislav gross on the village Lipnik Regulation No 1/2003

as regards the construction portion of the cadastral territory of Lipnik



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal



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

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

the Tribunal, as amended, and pursuant to section 124 para. 3 of Act No.

128/2000 Coll., on municipalities (municipal establishment), as amended,

sent to the Constitutional Court 13. February 2004 (filed to post 12.

February 2004), the then Interior Minister Stanislav Gross (

"the complainant") sought the release of the finding, according to which the regulation of the village

Lipnik No 1/2003 as regards the construction part of the cadastre of real estates

the territory of a Lipnik date of publication of the award in the collection of laws repealed.



The appellant noted that the contested regulation has been approved by resolution of the

The Municipal Council of the village of Lipnik 28. February 2003 and that all the law

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

the Office of the Central Bohemia region has made the challenge of 9 June. in May 2003, no.

3419/03 the village Lipnik to rectify the situation. The Ministry of Interior came to the

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

of 10 June 1999. November 2003, MS-No. 1999/5/1-2003 launched the administrative

the procedure for the suspension of its effectiveness. Because the municipality Lipník axle

nezjednala, Ministry of the Interior decision No. 1999/MS-2-2003 dated

January 13, 2004, the effectiveness of the regulation of the village has suspended.



The appellant stated that according to § 61 para. 2 of the law on municipalities, the municipality

the issue of regulation of the municipality governed by the laws and other legislation, which

include the law of municipalities, i.e.. generally binding decrees and regulations.

According to the applicant, it follows that the regulation must be in accordance

and with each other, already issued, the legislation of the community. The village of Lipnik while

the contested regulation has announced permanent closure of construction on part of the territory

municipalities, and part of the village in question has already been addressed in general binding

by a decree of the village Lipnik of 20 December November 2001 on the mandatory parts of the

master plan residential unit Lipnik (hereinafter referred to as "the municipal Decree"),

which establishes mandatory term of use and spatial regulators for

the arrangement of the territory of the village of Lipnik. Municipal Ordinance part of the territory concerned

regulates in article. 3 (2). 9 so that it excludes construction in this area with

the exception of exhaustively defined structures. The village by the contested regulation on the same

part of the territory of the permanent building closure announces that in the article. 1 (b).

and) defines the construction activities in the territory of the prohibited and permitted

ambiguously worded exceptions, IE. allows you to place in the territory of another

types of structures, than allow the municipal Ordinance. The same territory is so

regulated by two laws of the municipality, with the contested regulation of the village

construction activity regulates conflict with municipal by Decree, and that in the article. 1

(a). and) point 1., in which beyond the municipal Decree allows the construction of

small buildings and equipment for forestry, agriculture,

nature conservation or recreation, which does not interfere with or otherwise wasted

the territory. In the article. 1 (b). a), point 2. It is on the contrary reduced

realization of linear structures outside of the bike paths; construction for technical

infrastructure are dropped completely and in the article. 1 (b). and) point 4. with

enables the construction of fencing set up to protect the forest stands in front of the

game.



According to the applicant must be the building enclosure renowned for municipalities under section 33

paragraph. 3 of Act No. 50/1976 Coll., on zoning and the building code

(the building Act), as amended, by way of regulation of the village

the content in accordance with the provisions of the construction Act governing

building closure issued by the municipal authority of the municipality in the form of land-use

decision. The fact that the contested regulation regulates the part of the territory of the municipality

construction activity differently from the municipal Decree was based on the petitioner's

breach of section 10, section 39 and § 37 para. 1 and 2 to the building Act, of which

implies the obligation to provide for the issue of building closures, its compliance with the

the goals, objectives and planning documentation.



The alleged non-compliance by the applicant cannot bridge the interpretation.

For example, when you use the principle of lex posterior derogat priori should

the application takes precedence over regulation, which would in effect mean the negation

a fixed and rather demanding process of making spatial planning

documentation. Moreover, it is questionable whether appellant can be

interpretive method apply to laws which were issued

the same entity (municipalities), of which, however, have a completely different nature

(generally binding decrees are issued in a separate responsibility in

meaning of article 87(1). paragraph 104. 3 of the Constitution, the scope of the delegated Regulation).



Furthermore, according to the applicant, the contested regulation in violation of § 40 paragraph 2. 2

the building Act lays down the building closure as permanent. Construction law

does not allow you to issue in the form of a planning permit of construction closure as

permanent, as such, cannot be fixed even in the building enclosure

case construction issued by the regulation of the village; the regulation of the village cannot

as a derivational legislation to impose more obligations or greater

the restriction than the law permits, in the case of the construction of the territorial decision about

building closure.



The appellant also pointed out to the expert opinion of the Ministry for the local

development of 7 November. January 2004 No. 25610/03-63/2274, which the

The Ministry of the Interior. Even from this opinion. It follows that the adoption of the

the contested regulation was violated the provisions of section 29, section 32 and section 37

the building Act and the provisions of article. 3 (2). 1 and 9 of the municipal Ordinance.



II.



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



According to § 69 para. 1 of the law on the Constitutional Court the proposal was sent to the participants

control. The municipality Lipník in its statement of 22 September. March 2004 by the mouth of his

Mayor Ladislavy Long has expressed a request to Constitutional Court

It has refused.



The village of Lipnik confirmed claims in the first place the plaintiff have been fulfilled,

all the legal conditions for validity and effect of the contested regulation and

Whereas this regulation is still in effect as adopted on 28. February

2003. To advance the regional authority of Central Bohemia region, the municipality said it was

in its opinion, not motivated by an interest in the proper exercise of delegated

the scope of the, but his efforts to place on the territory of an existing Biocentre

"supra-regional" meaning Young big development area (as the preparer

changes in the land use plan for LLU Young), and this despite the opposition of the concerned municipalities.

(I) in the territory, which was declared a construction bond.



The village of Lipnik expressed the belief that the contested regulation is in accordance with the

zoning laws and other legal regulations and with the objectives and tasks of the jimi

tracked.



The alleged breach of the contested regulation, with the article. 3 (2). 9 municipal ordinances

the village of Lipnik, stated, that the contested regulation is cited with the article municipal

decrees in accordance. A municipal ordinance prohibiting the construction with the exception of

line structures, buildings for the technical infrastructure and buildings

strictly necessary for the management of forest and agricultural land

the Fund. The contested regulation forbids the construction with the exception of cycle paths

(liner construction), nerušící and the value of the landscape and the small

buildings-these buildings and equipment referred to in the village is related to the

the exploitation of forest and agricultural land and building for this

the purpose of the necessary infrastructure. For reasons of protection of public interests in the territory of the

the definition of construction in the contested regulation to be expressed more precisely,

than is the case in territorial planning documentation, as it addresses the use of

territory at a different level of detail. Therefore, the contested regulation was for

the exceptional territory (in terms of its science, landscape and

aesthetic values and recreational potential of the fleshed out and clarified)

General format of the Decree on the mandatory parts of the master plan. The regulation is

logically, more accurate, since it applies only to a specified territory, while

Municipal Ordinance applies throughout the neurbanizovaného or to the urbanization

undetermined zoning plan project of the territory of the municipality.



The adoption of the interpretation of the regional authority of Central Bohemia region and the Ministry of

the interior construction bonding and territorial plan must be equal, according to the

the village of Lipnik able to provide for the construction of the closure for a territory has ceased to be

the meaning of. An undue violation would occur for example. When would construction

bond was declared permanently for stoppable territory (section 139a (3)

the building Act), which in this case is not.



The village of Lipnik identified the appellant's reference to the process of commissioning

planning documentation as legally meaningless, since one has to ensure that the

territorial planning documentation in a separate scope could be


be reviewed by the concerned authorities of State administration in terms of compliance with the

the interests protected by special legislation. In the case of regulation of the village

It is, however, exclusively on the performance of State Administration (the transferred responsibilities).



In the case of the Decree on the mandatory part of the master plan and in the case of regulation

the announcement of the construction of the village is by the village of Lipnik for legal

the provisions of the same legal force, so even if one of them was referring

the limits of land use at the site; more strictly, does not it

annulment (defect), one of them in the use of the territory must

of course be subject to the conditions of both regulations. Both provisions of the municipality in

this case are not in conflict, but are added.

a territory is solved, the zoning plan in no way preclude

the ability to provide for the territories and to provide the building closure

stricter conditions for the activities in this territory.



In this context, the municipality expressed the view that the procedure provided for in § 127 paragraph. 1

(section 124) of the Act on municipalities, may be applied only if the regulation is contrary to the

the law (not another law-decree of the ministries, in General

binding Decree municipalities or regions). So, even if the contested regulation

conflict with municipal by Decree, issued in accordance with § 79 paragraph 2. 3

The Constitution and § 11 (1) 1 of the law on municipalities, i.e.. on the basis of the law and in its

the limits.



Contrary to the argument of section 40 and paragraph. 2 the building Act, the municipality Lipník

It stated that from the building Act anywhere to indicate that the publication

building closures had to be temporary measures. On the contrary, according to § 1 (1). 2

the building Act has regional planning, which is a construction bond one

from the Toolbox, create preconditions for securing continued accordance of all

the values in the territory. In the territory was declared a construction bond due

its permanent, rather than transient natural history, landscape and aesthetic values

and its recreational potential. The area is a significant feature of element

with unique natural plant communities with the occurrence of a series of protected plants

and animals. The purpose of the construction is to maintain and permanently protect these

values. In the event that this purpose has ceased to exist, nothing prevents the cancellation or

change to a new regulation of the municipality. According to the village of Lipnik § 40 paragraph 2. 2 building

the Act expressly provides that the bond published without

precise time limits. The placing of the word "permanent" in the regulation of the village

may be unnecessarily, but it cannot cause its illegality.



The claimant's allegations of breach of the contested regulation with the provisions of

the building Act is not, in the village of Lipnik, if any, as it is with the regulation

in accordance with those provisions or the stuff at all do not apply (section 10,

section 29, § 37 para. 1 and 2 and section 39 of the construction Act). The provisions of that

the basis for the issuance of zoning and planning decision is planning

documentation, is respected in the present case, since the construction bond is

only concerns the territory specified in the zoning plan as unstoppable.



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

the Ombudsman, however, the Constitutional Court has not communicated that

enters the proceedings; Therefore, the intervener.



The resolution of the Constitutional Court No. pl. ÚS 9/04-15 of 23 December 2003. March 2004

the proceedings in the case on 30 September. March 2004 due to the decline in

the number of judges of the Constitutional Court to eleven. The resolution of the Constitutional Court

No. pl. ÚS 9/04-19 of 22 March. in June 2004 it was decided to

continuation of proceedings, since the number of judges of the Constitutional Court has risen again

to twelve.



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



"The regulation of the village



No 1/2003



as regards the construction portion of the cadastral territory of Lipnik



The Municipal Council of the municipality Lipník has resolved on 28. February 2003 issued pursuant to §

paragraph 102. 2 (a). d) Act No. 128/2000 Coll., on municipalities (municipal establishment),

as amended, and in accordance with § 33 para. 3 of Act No. 50/1976

Coll., on zoning and the building code (the building Act), as amended by

amended, this Regulation:



Article. 1



This Regulation shall be designated as permanent building enclosure "^ 1") on the territory of the

as defined in the article. 2 in this regulation, and that in this range:



and) is prohibited:



1. place new buildings with the exception of small buildings and

equipment for forestry, agriculture, wildlife or recreation,

that does not interfere with or otherwise wasted the territories



2. build new paved bike paths, with the exception of communication



3. build a device that would break the landscape or otherwise

to eat,



4. build fences with exception of forest nursery, fencing set up to

the protection of the forest stands before the game,



5. build additional equipment or to carry out landscaping.

1) § 33 para. 3 of Act No. 50/1976 Coll., on urban planning

and the building code (the building Act), as amended

regulations.



Article. 2



(1) Construction bond shall be delivered in the territory, whose exact boundaries are

marked on the map at a scale of 1:10000, whose original is stored on the municipal

Office.



(2) an overview of the parcels of the territory referred to in paragraph 1 of article 2 is

Appendix No. 1 to this regulation, its graphical representation is the annex No.

2 of this regulation.



Article. 3



This Regulation shall enter into force on the date of 15.3.2003

Annex 1



Regulation No 1/2003 of 28.2.2003

as regards the construction portion of the cadastral territory of Lipnik



The description of the boundaries of the territory, on which shall be designated as building enclosure



1. the name of the site



Region: Central Bohemia

Village: A Lipnik

Cadastral territory: a Lipnik



2. The boundaries of the territory of the



This is about the entire land parcel 5034, 5036/1, 5038, 5039,/2

5040, 5041, 5042, 5053, 5054, 5055, 5056, 5072, 5074, 5075, 5073

and 5076, that are part of the regional Biocentre Young. ".



According to the explanatory memorandum to the contested regulation, the purpose of building

closures keep and permanently protect a defined part of the territory for their

natural history, landscape and aesthetic values, to allow its use for

recreation and edification of citizens and contribute to the improvement of the

the environment of the region and its recreational potential. The area of the building

closures so represents the specific large-screen protection preserved

the landscape of the former military incoherence, Milovice-Mlada. Construction bond

includes the original military training ground, the area of the former municipality of Young and part

the adjacent forest stands in the regional biocentru Young and referred to in

the current MASTER PLAN of VUC Young (1994) as a site of increased interest protection

nature. Categories of VKP-unique bright Birch groves, rare

pískomilná Fellowship.



IV.



The conditions of the locus standi of the applicant



The Constitutional Court first dealt with the question of whether the petitioner is-Minister

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

facie concluded positive. According to § 64 para. 2 (a). (g)) of the

The Constitutional Court, the Minister of the Interior may make a proposal to repeal another

law or its individual provisions under art. 87 para.

1 (b). (b)) of the Constitution, if the proposal to abolish the legal regulation of the municipality.



Minister of the interior design was preceded by surveillance proceedings pursuant to title

Vi. the Act on municipalities. The regional authority of Central Bohemia region called 9. may

2003 the municipality Lipník, ref. 3419/03, to rectify the situation; the challenge was the village

delivered 14. in May 2003. The Ministry of Interior came to the conclusion that the

the contested regulation is contrary to the law, and therefore the measure of 10 June 1999.

November 2003 No. MS-1999/5/1-2003, launched the administrative procedures of the

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

delivered on 10. November 2003. Because the municipality Lipník axle

nezjednala, Ministry of the Interior decision No. 1999/MS-2-2003, dated

January 13, 2004, the effectiveness of the regulation of the village has suspended; the decision was

Municipal Office delivered 21. January 2004 and came into force on this day.

Under section 124 para. 3 of the law on municipalities was Minister of the Interior no later than 15

days of suspension generally binding decrees of the village to submit a proposal

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

on 5 February 2000. February 2004, the Minister of the Interior, however, the proposal made to 12.

February 2004, when it made it to the post.



The Constitutional Court notes that, in terms of the law on the Constitutional Court it is necessary to

the time limit under section 124 para. 3 of the Act on municipalities regarded as the period

riot, whose failure does not lead to the rejection of the proposal for the reasons referred to in §

paragraph 43. 1 (b). (b)), or (b). (c)) of the Act on the Constitutional Court. The law on the

The Constitutional Court in § 64 para. 2 (a). g) does not active

evidence of the Interior Minister the other terms.



From this conclusion, however, by no means does not imply that from the perspective of the law on municipalities

It is in section 124 para. 3 for a period, with failure to comply with which riot do not

no other consequences. This is a very important period.

Minister of the Interior has exceptional powers to suspend the effectiveness of the

legal regulation of the village, before turning to the Constitutional Court with a proposal

on its cancellation. In the realm of so-called. individual municipalities as


no doubt a crucial intervention in the constitutional law on the territorial Government.

If the Minister of the Interior after suspend the effectiveness of legislation

the village, remained idle, it would lead to the effective abolition of the legal

Regulation, as its effectiveness would be permanently suspended. The purpose of the

the provisions of the first sentence of section 124 para. 3 is to avoid unconstitutional situation where

Executive authority substantially interferes in the constitutional law of the territorial

Government Unit, without being subjected to judicial control, this intervention of the

the viewpoint of constitutionality. Because the territorial Government unit does not have the ability to

the program provides the right to compel the Minister of the Interior, so that in due time its

design of privilege, and the law on municipalities while the consequences

inactivity does not address the Minister of the Interior, it is constitutionally Conformal

interpretation of the situation so that the effectiveness of the legal regulation of the village

the mere lapse of time limits under section 124 para. 3 of the Act on municipalities.



This effect with regard to § 127 paragraph. 1 of the law on municipalities and prosecutes

Regulation, i.e. law issued in the scope of the transferred. On

actions and decisions of the Constitutional Court on the proposal of the Minister of the Interior

annulment of the contested regulation, the village of Lipnik, however, has no effect if the

the contested regulation effective or not (cf. section 66 (1) of the law on

The Constitutional Court).



In the.



Constitutional and legal conformity of the legislative process



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

the Court, in deciding the content of the Act or other legislation of the

for their compliance with constitutional laws and other legal

prescription, whether or not the laws to see if it has been adopted and issued within the limits of

The Constitution laid down the competence and constitutionally prescribed way. Article. 79

paragraph. 3 and article. 104 of the Constitution, while the procedure for the issue of law confers on the

regulations of the municipality of legislation.



In this respect, from the minutes of the public meeting of the Municipal Council

held 28. February 2003 in Lipník, the Constitutional Court found that at the meeting of

There were 8 Councillors and that the contested regulation, it was

approved unanimously. Because the Municipal Council of the village then had 9 members,

one of which was not present at the hearing, it can be concluded that the contested regulation

It was accepted in a qualified manner (article 92, paragraph 3, and section 87 of the Act on

the municipalities); in the village of Lipnik, according to § 99 paragraph 2. 3 of the Act on municipalities does not select the

the Council of the municipality, and, therefore, pursuant to § 84 paragraph. 3 of the Act on municipalities issued regulation

the municipality, the Municipal Council of the municipality. Furthermore, the Constitutional Court found that the contested

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

Lipnik 28 June. February 2003 and captured on 24. March 2003, so give

force on 15. March 2003 (article 12, paragraph 2, of the Act on municipalities). The constitutional

the Court finds that legislation was adopted and published in the

According to the law on municipalities, i.e.. constitutionally prescribed way.



Vi.



Reviews of the Constitutional Court



According to the applicant, the contested regulation has the Constitutional Court of the municipality cancel since

It is in breach of article. 3 (2). 9 generally binding decrees of the village of Lipnik

November 20, 2001 on the mandatory parts of the master plan of settlement Department

Lipnik, which is in contradiction with article 10, § 39, and § 37 para. 1 and 2 for the building

the law, which imply the obligation to provide for the issue of building

closures of its consistency with the objectives, intentions and planning documentation.

In addition, according to the applicant, the contested regulation in violation of § 40

paragraph. 2 the building Act, from which it follows that a construction bond cannot

be established as permanent.



The Constitutional Court will first have to deal with the question of whether he is entitled to assess the

the consistency of the legal regulation of the Ordinances of the municipality and that is

entitled to a legal provision for non-compliance with other legislation

Cancel. In addition, the investigated the case now, the situation is more complex that is

conflict with municipal adduced generally binding Decree of the same village.



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. The Constitutional Court therefore has the powers to cancel the legal prescription

less legal force than the law, but only for its contradiction with the constitutional

policy or law. The Constitution does not confer the Constitutional Court the power to interfere with the

bye-laws of the lower legal force for the conflict with the sometimes by

regulations of the higher legal force or even conflict with the podzákonným

legal regulation of the same legal force. In the plane of the abstract control standards

so the Constitutional Court is not universal guardian accordance hierarchically

build the rule of law in all its stages. The contradiction of a contract or

the legislation of different or even of the same legal force is in our constitutional

'' especially in the plane of the system specific control standards in their

application within the meaning of article 3(1). 95 para. 1 of the Constitution. Under this article, the judge

the General Court also expressly authorised to assess the compliance of another

the law only with the law or with an international agreement that is

part of the legal order, but from the first sentence of this provision,

the podzákonným law is not bound. To apply the rule of law

on the whole, find the right in his unity, must be able to logically and

authorized to assess and lower legal legislation podzákonného

forces with the podzákonným legislation, greater legal force and in accordance with the outcome of the

their assessment of the contradictory podzákonný legislation in the present case

not to use with a link to a standard interpretative principle of lex superior

derogat legi inferiori.



In other words, one thing is a hierarchical construction of rule of law, for the

the internal unity and cohesion, it is necessary to lower the legal standard

power was in accordance with the norm of higher legal force, the second thing is the definition of

the powers of the faulty legal standard of the rule of law in an authoritative statement

delete. While the Constitution confers on the Court the power to assess each

compliance with the law by law podzákonného, or podzákonného

the legal regulation of the lower legal force with the podzákonným legislation

higher legal force and in the event of violation of the defective regulation in

particular case not to use, the power to cancel the authoritative statement

another law entrusts the Constitutional Court only in the event of conflict with the

the constitutional order or the law.



As regards the legal provisions issued by the authorities of the territorial self-government (municipalities and

the edge), you will have to distinguish whether the performance of State administration or

whether it is a manifestation of the law of constitutional law on territorial self-government.

The Constitution in article. 105 allows the Law entrusts to the authorities of the local and regional authorities and

performance of State administration; then a municipality carries out. by the.

The competence of municipalities to legislate in the sphere of competence is transferred

founded in the article. paragraph 79. 3 of the Constitution. Under section 11 (1) 1 of the law on municipalities

so is a village and municipality in the form of a regulation. According to § 61 para. 2 (a). and)

the law on municipalities, the municipality is governed by the laws and other legal regulations,

implying that the regulation must be the laws and other legal

regulations in accordance. In addition, the power to legislate in

the sphere of competence of the individual in the form of generally binding decrees is

founded by the other provisions of the Constitution, article. paragraph 104. 3 (cf. also find

The Constitutional Court, SP. zn. PL. ÚS 28/95, collection of findings and resolutions

The Constitutional Court, volume 4, finding no. 85, p. 301; promulgated under no.

14/1996 Coll.). According to § 35 para. 3 (b). and municipalities) of the municipality

the issue generally binding decrees governed only by the law, and no longer

in other legislation. In a separate area of competence, while

applies the so-called. the reservation of the law (article 104, paragraph 1, of the Constitution): a stand-alone

the scope of the municipalities and regions can be constitutionally Conformal manner regulate the

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

legal force.



For 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.



However, the contested legislation is the regulation of the village. ^ 1)

the applicant, the contested regulation in violation of § 10, section 39 and section 37

paragraph. 1 and 2 for the building of the law because it is in breach of article. 3 (2). 9

generally binding decrees the village Lipnik about mandatory parts of the master plan

residential service Lipnik of 20 December November 2001, that the municipal

the city government issued pursuant to § 84 paragraph. 2 (a). (b)) of the law on municipalities and

According to § 29 para. 2. building code ^ 2) article 3 of the municipal Decree

According to its title contains mandatory functional recovery and regulators

the spatial layout of the territory. In paragraph 9, then provides that "other

territory for which there are special regulators handled the landscaping

territory. In this area is excluded, with the exception of pipeline construction

buildings, constructions, for the technical infrastructure and buildings strictly necessary

for the management of forest and agricultural land resources. "



In case of reservation by the law does not apply, so the law


the issue may be referred to the legislation of the lower legal force and

You may also edit the relationships between them. If the law provides that

Regulation of construction closure must be in accordance with the objectives, intentions and

documentation of spatial planning, then this blanketním way binding

defining its contents. If the regulation of building closure will not be in

accordance with the objectives, intentions and planning documentation, it gets to the

conflict not only with the specific generally binding Ordinance, but also to

violation of the law, compliance with the objectives, plans and documentation of the territorial

planning in accordance with generally binding decrees ordering. The Constitutional Court therefore

It is appropriate that compliance of the contested regulation with article. 9. 3

generally binding decrees on the mandatory parts of the master plan.



However, the Constitutional Court concluded that the contested regulation is not with the article. 9

paragraph. 3 municipal ordinances vicariously with § 10, § 37 para. 1 and 2

and section 39 to the building Act, in violation of. The Constitutional Court must regard the village

Lipnik, renowned for building enclosure of regulation from the goals and objectives

spatial planning does not deviate. It is logical that the definition of construction

closures can be detailed, as the regulation applies only to

the specified territory, whereas the article. 3 (2). 9 the decree applies to the entire

neurbanizovaného a territory or territories with the urbanization of undetermined zoning plan

of the village. Detected minor drafting differences between the contested regulation and

generally binding Decree cannot justify a finding of illegality

the contested regulation. It would be a denial of the meaning of construction, if the

the content had to be as well defined already in the territorial plan. Building

You can even provide closure for the territory in which the territorial plan for the construction of

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

territorial planning documentation for the territory. Between the regulation of construction

closure and generally binding Ordinance is therefore not a legal relationship

Regulation of the lower legal force and legal regulation, greater legal force.

The method of legal regulation in both cases are not the same. When promulgating

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

and goals of spatial planning. Assessment of compliance with the objectives and intentions of the

spatial planning in a given territory does not exhaust the release of spatial

decision. This compliance must be considered when deciding to continue on

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

the building permit for the construction of the concrete construction of the Building Authority must

address the issue of whether to allow such construction can be given to the objectives,

intentions and planning documentation, IE. and due to the generally

binding Decree, which was approved by the zoning plan.



The contested regulation is based on the claim of the claimant Finally, contrary to section

40 para. 2 the building Act, which in his opinion does not allow

to provide for the construction of the closure as permanent.



According to § 40 paragraph 2. 2 the building Act "the period of validity of the decision on the ...

building closure provides for building Office [or a municipality, if it announces

Regulation of the village (section 33 (3) of the building Act)]. If you cannot

the validity of the decision in advance limited, the Building Authority will decide [respectively.

the municipality] of its expiry, termination of the purpose for which it was the territorial

decision. "



The Constitutional Court agrees with the applicant that the construction of the closure actually

cannot be determined as a permanent, if this word should express its

nezměnitelnost and nezrušitelnost for ever and ever. This, of course,

It is not. The verbal expression of "permanent construction bond" must be understood to

so, it's about the building closure, renowned for an indefinite period.



From the wording of the provisions of § 40 paragraph 2. 2 the building Act in doing so clearly

It follows that the construction Act expressly assumes that the validity of the construction

closures will not be limited in advance, which in other words means that you will

declared for an indefinite period until the appropriate

cancelled for the reason that it ceased to exist the purpose for which was announced. In a given

the case was the construction bond for the portion of the land territory of a Lipnik

declared for an indefinite period in order to protect the natural history, landscape and

the aesthetic values of the territory and improve its recreational potential and

the quality of the environment. If the competent authority of the municipality to the conclusion

that this purpose has lapsed, do not prevent him nothing to building closure set aside,

Although it has been marked as persistent.



The Constitutional Court therefore finds that the contested regulation does not infringe or

with § 40 paragraph 2. 2 the building Act. After completion of the procedure, therefore, the constitutional

the Court concludes that the grounds for revocation are not fulfilled, the regulation of the village Lipnik No.

1/2003, as regards the construction portion of the cadastral territory

Lipnik, and therefore the proposal in its entirety, pursuant to section 70 para. 2 of the law on

The Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



1 the law empowers a municipality and) region to the announcement of the 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.



2) according to § 35 para. 2 of the Act on municipalities to individual municipalities

include in particular the matters listed in section 84, 85 and 102 of the law on municipalities, with

the exception of the issue of the regulation of the village. Pursuant to § 84 paragraph. 2 (a). (b))

Corporation of the municipality of reserved approved urban plan of regulatory

plan. From the back reference to § 35 para. 2 of the Act on municipalities, offers

a clear conclusion that the municipality approved his plan in a separate

the scope of; corresponds to the form, what it does (General binding

the Decree), and the fact that the territorial development of the village is a typical domain

local and regional authorities. The legislature, however, in section 13 of the Act for the building stipulated

that the municipality its zoning plan takes in the scope of carried over, in other words,

that the State administration and not the territorial Government. The practice of the

the contradiction of trying to bridge the interpretation according to which the acquisition of spatial

the plan is by the very act of its approval, however, in

individual municipalities. Still, such a definition of the boundary between

devolved autonomy and appears to be on the edge of certainty

and clarity of the law.

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