Parties to the procedure for issuing a building permit under the new Building Act
In the past, the participation in the procedures for issuing a building permit was subject to numerous amendments, the provisions of the Construction Act (ZGO-1) were annulled by the Constitutional Court and so the rules of the General Administrative Procedure Act (ZUP) were being applied.
The new Building Act (GZ) which will apply as of 1 June 2018 redefines the intervening parties in the procedure for issuing a building permit. Apart from the investor, the parties to the procedure are: (i) the owner or the holder of some other right in rem on the real estate, for which the building permit is being issued, (ii) the abutter unless the competent authority establishes that the construction does not affect him or her, and (iii) any other person who demonstrates that the intended construction may affect his or her rights.
There are two fundamental changes being introduced by the GZ which are necessary to point out. First, the persons that may participate in the proceedings pursuant to GZ acquire a status of the intervening party by notifying their participation, which implies that these persons must themselves file an application for participation in the proceedings. Second, the area to determine the parties is being replaced by the assessment of the impact on the rights and legal benefits of the potential intervening party. The GZ determines itself what shall be deemed a demonstrated legal benefit. It shall be considered a legal benefit, in particular, a benefit of the intervening party, allowing him or her to participate in the proceedings due to the environmental protection or potentially excessive emissions, the fire prevention, the rules regarding the distance from the borders and buildings, the determination of the land use and the statics of the building. The intervening parties will be definitely able to demonstrate other basis for legal interest to participate in the proceedings. When demonstrating a legal benefit as a condition for participation in the proceedings, other persons referred to in point (iii) must prove such legal benefit, while such is presumed in the case of abutters referred to in point (ii), but the public authority may demonstrate otherwise.
It follows that GZ requires more input from persons who will want to participate in the procedure for issuing a building permit. It is not excluded that administrative authority will continue with the existing practice and require that investor indicates all the persons that may participate in the proceedings and will inform them in advance of the introduction of the procedure and possibility to notify their legal interest.
