New Construction Law: Exclusion of Public Again ?!

VIA IURIS - Center for Public Advocacy, pointed out that if the new Construction Law, that has currently been debated by the Parliamentary Committees were adopted in its proposed form than this law would repeatedly allow construction without notifying the citizens that live near the construction zone.

Again, it seems as though this absurd situation is about to be repeated, where citizens will only be informed about new construction projects in their neighborhood, only after the construction has started.  This is a huge problem because once the construction has started nothing can be done regarding the construction permission of the citizens that live near the construction zone. Even though building permits are required and published, they only appear on official notice boards. The issue is that these official notice boards are usually too far from the residence of the citizens, and as a result, they cannot be monitored regularly by ordinary people. If this new construction law is passed it is another example of how the public is left out of the decision making process.

Peter Wilfling, the lawyer cooperating with the VIA IURIS stated: "If there will not be some amendments that are implemented to recognize the need for citizens awareness, then this law will unfortunately allow both manipulation and fraud. Moreover, this new law is in contradiction with a number of the European Union’s directives."

In the past, it was a regular practice that a notice of initiation of building proceedings, or the decision on building permits were only published on the official notice boards that were put up miles away from the citizens. Consequently, citizens were either informed about new building projects only when there was no possibility left to counter-argue them, or when the construction was already approved, and citizens were left out of the decision making process without any chance to claim an appeal. For instance, there are a number of major construction projects that are perfect examples of this abuse to citizens’ rights such as: the large apartment complexes in Marianka, Aupark in Žilina, a large multi-functional building in park place, on Belopotocky Street in Bratislava, or the construction of apartment complexes in Ruzinov district.

Furthermore, in all the above examples the citizens were not informed at the construction site or on the Official Building Office’s website. The only information regarding these projects was posted on notice board, which was located in the Office, and this has made the protection of citizens’ rights much more complicated.

VIA IURIS proposed to adopt several new amendments to the existing Construction Law, in order to strengthen citizens’ awareness about the construction zones and building permits. The goal of these amendments is to prevent the manipulations in the permitting processes, and avoid future violation of the rights of citizens that are directly affected by the construction projects.

For the full text of the amendments in Slovak, click here.

On the 19th of November 2009, the Economic Committee and the Constitutional Council of the Slovak Republic debated about new Construction Law. Via Iuris sent some amending proposals to all the members of these two committees. As well, they appealed for the members of the Ministry of Construction to adhere to the law, and embrace these amendments.

Czech Advocate Luděk Šikola, an expert on Construction Law, gives his opinion on the new Slovak law proposal: "The proposal for the new Construction Law is evidently inspired by the Czech Construction Law. However, I am surprised that the Slovak one, in comparison with the Czech Law, provides the public with very low notification on the planned construction projects. For instance, the proposal does not require disclosure of information regarding the initiation of proceedings, or the release of construction zones and building permits decisions to be posted on its Official Building’s Office website - this is necessary to post announcements regarding construction projects that will affect many citizens and have a large impact on their health and environment."

Amendments to the Construction Law are supported by 26 associations dealing with environmental protection (Association, name, city):

1.  Asociácia strážcov chránených území Slovenska, Zdeno Pochop, Spišská Nová Ves
2.  Pre prírodu, Zuzana Václavová, Trenčín
3.  MV SZOPK (Mestský výbor Slovenského zväzu ochrancov prírody a krajiny), Mgr. Katarína    Šimončičová, Bratislava
4.  Spoločnosť pre trvalo udržateľný život SR, prof. RNDr. Mikuláš Huba, PhD., Bratislava
5.  Združenie ochranárov Pčola, Pavel Petráš, Stará Ľubovňa
6.  CEA Trenčín, Mgr. Richard Medal, Trenčín
7.  CEPTA, Ing. Daniel Lešinský, PhD., Zvolen
8.  Dubnická environmentálna skupina, Marek Kurinec, Dubnica nad Váhom
9.  Nadácia Ekopolis, Peter Medveď, Banská Bystrica
10. Nádej pre Sad Janka Kráľa, Ing.arch.Elena Pätoprstá, Bratislava
11. Ochrana dravcov na Slovensku, Jozef Chavko, Bratislava
12. Klub Strážov, Mgr. Juraj Smatana, Považská Bystrica
13. Brečtan, Ing. Peter Nováčik, Nové Mesto nad Váhom
14. Centrum environmentálnej a etickej výchovy Živica, Mgr. Juraj Hipš, Bratislava
15. Regionálne environmentálne centrum pre strednú a východnú Európu - REC Slovensko, Ing. Vladimír Hudek, CSc., Bratislava
16. Priatelia Zeme - SPZ, Mgr. Martin Valentovič, Košice
17. OI Za zachovanie životného prostredia v Starom meste, Soňa Párnická, Bratislava
18. Lesoochranárske zoskupenie VLK, Ing. Juraj Lukáč, Tulčík
19. SOSNA, Ing. Štefan Szabó, PhD., Košice
20. Priatelia Zeme - CEPA, Roman Havlíček, Banská Bystrica
21. OZ Tatry, Rudolf Pado, Liptovský Mikuláš
22. Spoločnosť pre ochranu netopierov na Slovensku, Ing. Martin Ceľuch, PhD., Bardejov
23. OZ ZA MATKU ZEM, Pavol Široký, Bratislava
24. Slovenská ornitologická spoločnosť/BirdLife Slovensko, Miroslav Demko, Bratislava
25. A-projekt n.o., Vlasta Kornerová, Liptovský Hrádok
26. Centrum pre Filantropiu, Marcel Zajac, Bratislava

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VIA IURIS highlights the serious shortcomings of the new Construction Law and proposes the following amendments:

1. Citizens affected by the planned construction will not be adequately informed.

In most proceedings on building zones, a developer will have no obligation to display information regarding the construction in a publicly accessible place. For instance, the developer has no obligation to post anything at the construction site, or on the land. Moreover, the proceedings regarding the placement of the buildings (so-called territorial proceedings) are considered the most important phase of the permitting process. In this phase, it is decided whether the building will stand or not, where it will be placed, and what effects it will have on the environment. If citizens want a chance to influence the proceeding they must be able to pose objections at this stage because later they can only influence on minor things. Even in the exceptional cases where the law protects the obligation to display information about the construction project, it is not concretely stated what content of information it should include. Moreover, the law does not determine any sanctions if the client does not fulfill the obligation to disclose information about the building/construction.

We suggested that the developer must have an obligation to disclose the information regarding the construction in a publicly accessible place, during the process of issuing a construction zone, for instance, either at the construction site or on the land they plan to use to build on. As well, we proposed to include a graphic display of the construction plans in the disclosed information. However, if the developer does not meet these obligations, then the Office will be required to reopen the oral proceeding, again. Nevertheless if citizens are well informed about the construction, then the proceeding cannot be reopened because it has fulfilled all the requirements. These exact adjustments are already valid in the Czech Republic.

2. The developer will not have any obligations to publish information on the websites regarding permits for either a building with a significant impact on the environment or on the ‘line constructions’ (which include: highways, roads, bridges, and pipelines).

The new law states that the public should be informed about the initiation of the proceedings on either construction zones, or ‘line construction’ permits. As well the public should be notified of the initiation of proceedings that will affect more than 50 participants (thus a building with large environmental impact).  Citizens should be informed through postings on the official notice board (so called ‘Public Notice’), and at all the housing unit meetings. The law does not state that the Office has an obligation to inform citizens about the initiation of the permitting process on their website, which is the most accessible source of information. For instance, in the Czech Republic, all the information that published on the official notice board must be automatically published on the Internet as well.

To ensure an adequate public awareness in the cases of large construction projects in particular, we propose that the information on the initiation of the permitting process must be posted on the website.

3. Citizens will not be well informed regarding the issuing of the decision on construction zones, or about the issuing of building permits on construction projects that have a large environmental impact, (‘line constructions’ are also included in this category).

The new Construction Law does not regulate either the decisions regarding new building zones or the mandatory publishing of building permits on both the Official Building Office website and on the neighboring house buildings for cases involving more than 50 participants (for instance, in construction projects with an extensive impact on the environment), or a ‘line construction’ project. In most cases the decision regarding the construction zone or the building permit is posted on the official notice board which is far away from the construction site, and citizens do not have the chance to notice the decision and consequently they miss the deadline on filing for an appeal. Currently, the interested parties that are involved in the proceeding are not given enough information in advance regarding the issued decision on the construction zones. As a result, in the next phase of permitting the construction zone, citizens cannot submit their main objectives and authorities do not proceed or concern with them later.

Therefore, we proposed that a decision on the building zones, and building permits they will always be announced on the website. The law maintains this condition also in the Czech Republic. Furthermore, we proposed that a decision on the location of buildings and building permits must be posted on the neighboring buildings as well.

4. The new law simplified the decision-making process of issuing a building zone because there is a potential high risk of abusing the process. The reason for this abuse is connected to the belief that the people that are most affected by these structures are not properly acquainted with the process or information.

Citizens will only be informed about the decision proposal of the building zones. However, they will not be proved with adequate information about the proposed building itself. Moreover, if the zone is approved by the territorial permit the citizens cannot appeal under the new law. Consequently, citizens do not even need to be informed about the decision-making process.  

Therefore, we proposed that the information on the intended construction that includes the construction zone can be permitted in a simplified version and should be published in a publicly accessible place near the construction site or on the land intend for the new building, as well as including an illustration of the future building. These provisions are already required in the Czech law.

5. The new law unreasonably narrows the range of participants allowed in the proceedings, and the building permission process.

According to the current version of the law, the participants allowed in the territorial and building proceedings are also the citizens who have either an easement right or a lien to the adjoining property. This circle of participants in the proceedings is also the same in the Czech Republic. However, the new law will completely and unreasonably exclude these citizens from the proceedings on building zones that will directly affect them.

We proposed that the new law should not narrow down the range of the participants over the current existing text of the Construction Law.

6. Under the new law the status of the civic associations that protect the environment are evidently incompatible with the EU rules.

The new law states that these civic associations of citizens that were established to protect the environment, may protest to the objectives or make comments in the proceedings if either the “public interest is at risk or whose protection is dealt with under a separate law". This provision is in contradiction with both the EU rules and the International Aarhus Convention. Under the international law, the interested public (hence the civic associations of citizens) must have the right to bring objections and comments towards activities that will impact the environment. The phrase "public interest whose protection is dealt with under a separate law” is very vague and would allow complete arbitrariness of the authorities and unconscious ignorance of the “inconvenient” public’s objectives. Thus, it is unclear what is considered to be “public interest,” or where the part of proceedings should take place, or when the public’s interest is breached.

There continue to be discrepancies between the Slovak legislation and the EU Directives as well as poor status of the interested public. As a result, there are ongoing proceedings within the European Commission regarding these matters. Moreover, by adopting these proposed changes it would result in further incompatibility with the EU law.

Therefore we suggested removing this provision from law proposal.

Contact: Peter Wilfling, Lawyer cooperating with the VIA IURIS – Center for Public Advocacy, Phone: +421 904 217 833.

Proposal for a new Construction law is available here.