Do you have to reapply for a building permit if the planning permission has been revoked by a court?

All of us know how much work it takes to obtain a valid building permit. But what happens if a court cancels the planning permission that was the basis for the desired building permit? Will the building permit be automatically revoked as well? And what if you have already built the structure - will it be classified as an illegal structure that must be removed? Can the building permit subsequently be reviewed by a court on the basis of a lawsuit by a dissatisfied participant in the proceedings? The answers are provided by the judgment of the enlarged senate of the Supreme Administrative Court of June 20, 2024, ref. no. 1 As 277/2022-54.

The enlarged senate of the Supreme Administrative Court dealt with the key question of whether it is possible to renew building proceedings under Section 100(1)(b) of Act No. 500/2004 Coll., the Administrative Procedure Code ("Administrative Procedure Code"), in a situation where a planning permission has been revoked but, pursuant to Section 94(5) of Act No. 183/2006 Coll., the Building Act ("Building Act"), a new planning permission is no longer issued because the construction has been legally approved in the meantime.

Both the Municipal Court in Prague and the defendant (the Prague City Hall) originally concluded that it is precisely the provision of Section 94(5) of the Building Act that precludes the possibility of re- evaluating the location of a building in renewed building proceedings. In their opinion, the so-called material condition for renewal cannot be met, according to which the revocation or amendment of the basis (in this case the planning permission) must lead to a different decision on the building permit.

The enlarged senate rejected this strict conclusion. It explained that:

  • The law itself does not preclude the renewal of building proceedings in such cases.
  • Section Section 94(5) of the Building Act merely means that no new planning permission is issued after the original planning permission has been revoked; however, it does not prevent the reasons for the revocation (i.e., any factual errors in the location of the building, conflict with the planning permission, omission of a participant, etc.) from being taken into account in the proceedings for the renewal of the building permit.
  • When deciding whether or not to allow the renewal of building proceedings, it is necessary to determine whether the reasons for revoking the planning permission could lead to a different outcome regarding the building permit. If so, renewal may be allowed. However, if it turns out that the planning permission was cancelled solely due to procedural errors that did not affect the substantive assessment of the location of the building, there is no reason to renew the proceedings.
  • Even if substantive deficiencies are found that could lead to a new assessment of the construction, the building authority must always assess the good faith of the builder and the principle of proportionality. It may therefore happen that the renewal of proceedings will not be permitted if its consequences, such as the threat of demolition of an already constructed building, significantly outweigh the harm to the applicant for renewal.
  • The Supreme Administrative Court also pointed out that the possibility of seeking redress in parallel through a court action against the building permit, in which the revocation of the planning permission could also be taken into account, remains preserved; renewal and judicial review are not mutually exclusive.

In this question, the Supreme Administrative Court overturned the judgment of the Municipal Court in Prague and the defendant s decision. The administrative authorities must re-examine the proposal to renewal the building permit proceedings and investigate the specific reasons for which the original planning permission was cancelled, whether these reasons could lead to a different outcome with regard to the building permit. They must also assess the good faith of the builder and adhere to the principle of proportionality.

Summary:

  • According to Section 94(5) of the Building Act (No. 183/2006 Coll.), once a planning permission has been cancelled, it is not necessary to issue a new planning permission if the construction has been legally approved in the meantime.
  • A building permit does not automatically lose its validity or effectiveness simply because the underlying document (planning permission) has been revoked.
  • A building permit remains valid until it is revoked in other proceedings (e.g., by a court, in review proceedings, or in renewed building proceedings).
  • However, if a participant (typically one who was previously omitted) proposes the renewal of the building proceedings and proves that the reasons for the cancellation of the planning permission may lead to a different outcome regarding the building permit, then the building proceedings may be renewed and, as a result, the building permit may be cancelled.