The fiction of issuing a binding opinion under the new regulation of the Building Act

One of these changes has been noted in the area of issuing binding opinions. As part of the amendment, the time limit for issuing a binding opinion was explicitly included in the Administrative Code . The authority concerned is thus now obliged to issue a binding opinion without undue delay, but within 30 days at the latest. This time limit may be extended, but only for a further maximum of 30 days, and only if the case is particularly complex and the 30-day time limit is not sufficient to assess it, or if an on-site inspection is necessary to assess it.

At the same time, the Construction Act also newly regulates the consequence of failure to comply with the 30-day (or 60-day) deadline for issuing a binding opinion. If the authority concerned fails to issue a binding opinion within the statutory time limit, the so-called fiction of a consent binding opinion without conditions will occur. This means that if the administrative authority does not issue you a binding opinion within (maximum) 60 days of the application, you are in the position of having been issued with a consenting and unconditional binding opinion.

Now you may be thinking that it is paradoxically more advantageous for you as a builder if the administrative authority does not fulfil its legal obligations, but the opposite is true. The Building Act provides for the possibility for the superior authority (i.e. the authority that is superior to the authority that should have issued the binding opinion) to cancel the fictitious binding opinion or replace it with a new binding opinion within 6 months of the legal validity of the decision that was conditioned by the binding opinion. This possibility will be available to the superior authority in cases where the legal conditions for issuing a binding opinion have not been met.

This rule does not provide much legal certainty, because if the administrative authority concerned, which should have issued the binding opinion, does not fulfil its legal obligation, you as a builder will be in uncertainty for another 6 months from the fiction of the binding opinion, whether the binding opinion will not be revoked by the superior administrative authority.

It should also be noted that this fiction does not apply at all to binding opinions issued on the basis of the Environmental Impact Assessment Act and to selected binding opinions issued on the basis of the Nature and Landscape Protection Act. Thus, if your construction project falls under one of these laws, you will not be able to avoid the issuance of a "classic" binding opinion anyway, even if the authority concerned fails to meet the legal deadline for issuing it.

However, despite the possibility of the fiction of issuing a consensual and unconditional binding opinion, the building authority has a duty to protect the public interest. Thus, it cannot be presumed that, in the event of a failure to comply with the statutory time-limit for issuing a binding opinion, which results in a fiction of a binding opinion, the building authority will not be able to limit you in any way in the decision issued. However, this raises the question of to what extent and to what extent the building authority can still substitute the content of binding opinions and when it is already exceeding its powers, resulting in a defect in its decision. However, this question will probably have to be answered by the interpretative practice of the administrative courts.

If you are not sure, please contact us and we will be happy to help you. We will inform you about other important changes in the field of construction law in upcoming articles.