Protection against inaction, or what can be done if the building authority fails to decide within the legal time limit

Author of the article: Mgr. Alice Dajčarová, LL.M., MSc., ARROWS advokátní kancelář (office@arws.cz, +420 245 007 740)

As is generally known, building authorities have statutory deadlines for issuing decisions in individual types of proceedings under the Building Act [1]. Unfortunately, it is not infrequently the case that the relevant building authorities do not make decisions within the statutory deadlines (especially with regard to their overcrowding), and the builders are thus often substantially prolonged in the whole process of construction implementation, which usually (and especially in recent years) brings with it inconvenience in the form of increased construction costs and possible threatened sanctions from contractual relations concluded, for example, between developers and future owners of buildings due to delays in construction implementation.

What are the legal possibilities of proceeding in such a situation in the case of construction and zoning proceedings we will therefore discuss in the following lines.

What are the deadlines for issuing a decision?

The Building Act sets the time limit for the issuance of a decision in the case of construction proceedings as follows:

"In simple cases, especially if a decision can be made on the basis of documents submitted by the builder, the building authority shall decide without undue delay, but no later than within 60 days from the date of commencement of the building procedure; in particularly complex cases, the building authority shall decide no later than within 90 days."[2]

A particularly complex case will be a case where the construction project is subject to an environmental impact assessment. For most "normal" construction projects, such as single-family houses, the maximum time limit of 60 days will therefore generally apply.

As far as the planning procedure is concerned, the time limit for issuing a decision is set by the Building Act as follows:

"In simple cases, in particular if a decision can be made on the basis of documents submitted by the applicant, the building authority shall decide without undue delay, but no later than within 60 days from the date of commencement of the zoning proceedings; in particularly complex cases, in particular in the procedure under paragraph 2, the building authority shall decide no later than within 90 days."[3]

Here again, the particularly complex case will be considered to be the decision on buildings subject to an environmental impact assessment, and for most "ordinary" buildings, the building authority is to decide without delay, but within a maximum of 60 days.

What if the building authority fails to meet the statutory deadline?

In the event that the building authority fails to meet the above deadlines, it is necessary to consult the Administrative Code[4] which states that "The administrative authority shall deal with matters without undue delay. If the administrative authority fails to act within the time limit prescribed by law or within a reasonable time limit if no time limit is prescribed by law, the provisions on protection against inaction (Section 80) shall apply to seek redress[5]."

The Administrative Procedure Code then provides, under the provisions of section 80(1), that "If an administrative authority fails to issue a decision on a matter within the statutory time limit, the superior administrative authority shall take action against inaction ex officio as soon as it becomes aware of it." The actual measures that can be taken by the superior administrative authority (in this case, usually the competent Regional Authority) are listed in the Administrative Code under the provisions of Section 80(4), where the options in the case of construction and zoning proceedings are as follows:

• ordering the inactive administrative authority (the construction authority) to take the necessary measures to remedy the situation or to issue a decision within a specified period of time,
• taking over the matter by the superior administrative authority (the competent Regional Authority) and issuing a decision instead of the inactive administrative authority (the building authority),
• entrusting another administrative authority (another building authority) within the administrative body of the competent Regional Authority as the superior administrative authorityto conduct the procedure (building or planning) in question,
• extension of the statutory time limit for issuing a decision, if it can be reasonably assumed that the administrative authority (building authority) will issue a decision on the matter within the extended time limit and if such a procedure is more advantageous for the parties.

Initiative for action against inaction

If the building authority fails to comply with the statutory deadline, you, as a builder, have the possibility to submit a complaint to the competent Regional Authority for action against inaction. While it is advisable to indicate in this complaint which variant of the inactivity measure you think the Regional Authority should apply in order to achieve an effective solution, it should be noted that the decision on which inactivity measure the Regional Authority should apply is purely at its discretion.

Following the submission of a complaint, the Regional Authority will then first request the file material relating to the proceedings from the building authority in order to be able to draw a conclusion as to whether there has been any inaction at all. If it concludes that it has, it is then up to the Regional Authority to decide how to deal with the situation and what measures it will apply to counteract the inaction. In the event that the building authority completely resigns from its duties in the context of the building procedure, it can be assumed that the Regional Authority will, in the first instance, order the building authority in question to issue a decision within the time limit set by it.

A complaint for action against inaction can be made repeatedly, so that even if, for example, the building authority is either granted an extension of the statutory time limit or is ordered to make a decision in the procedure within a 'new' time limit, and the building authority fails to comply with that time limit, the Regional Authority can again be approached by way of a complaint to remedy the situation by taking action against inaction.

How to continue to defend against inaction?

Unfortunately, it must be stated that although it is possible for the Regional Authority to order the building authority to take specific actions in the proceedings within the time limit set by the Regional Authority or to issue a decision directly, if the building authority fails to do so, there are no effective tools to enforce the obligation thus set. Thus, the builder has no choice but to file a new complaint for action against inaction again, hoping that if the building authority is completely inactive, the Regional Authority will delegate the matter to another building authority.

In conclusion, it can thus be summarised that if the building authority does not fulfil its legal obligations in the form of the set deadlines, there are possibilities to defend one's legal rights in such a situation, but their enforcement is, so to speak, toothless. However, even in the case of repeated or continuous inaction by the building authority, it is necessary not to give up and, e.g. despite repeated requests, to achieve the delegation of the proceedings to another building authority, which will hopefully already properly fulfil its legal obligations.

Are you currently dealing with a problem related to the inaction of the building authority? Do not hesitate to contact Mgr. Alice Dajčarová, LL.M. to effectively resolve the situation - from the preparation of a written initiative to take action against inaction, to communication with the relevant administrative authorities.

[1] In the context of this article, the term "Building Act" means Act No. 183/2006 Coll., the Act on Spatial Planning and Building Code (Building Act), as amended

[2] the provisions of Section 112(3) of the Building Act

[3] the provisions of Section 87(4) of the Building Act

[4] In the context of this article, the term "administrative code" means Act No. 500/2004 Coll., Administrative Code, as amended

[5] the provisions of Section 6(1) of the Administrative Code