Questionability of classifying a site verficiation decision as a general legal act
Site verification is an institute introduced into our legislation by the Spatial Management Act (“ZUreP-2”). Prior to that, Slovenian law did not know this institute. It is an instrument of spatial planning law, the purpose of which is to allow for more flexible regulation of spatial interventions.1 The procedure is carried out on the initiative of an individual investor, in which the investor may propose to: (i) transform or change the extent of the building land as defined in the OPN (i.e. municipal spatial plan) and determine the spatial implementation conditions; (ii) be able to derogate from the spatial implementation conditions as defined in the OPN when implementing the investment; (iii) be allowed use certain land temporarily, even though the spatial act does not foresee and regulate it.2
Soon after the introduction of the institute, issues arose both in theory and practice as to the legal nature of the act by which a site review decision – i.e. a site verification decision – is taken and the procedure to be followed in adopting it. Some argued that a site verification decision constituted an individual legal act and that the rules of general administrative procedure (notification, participation of the parties and interested parties, etc.) should apply to the procedure for adopting that act. However, others argued that it was a general legal act and that the procedure for adopting it should follow the rules that otherwise apply to spatial planning procedures (public consultation, publication in an official gazette, etc.).3
Due to difficulties in practice, the new Spatial Management Act (“ZUreP-3”) has explicitly regulated this issue and placed the site verification decision among the spatial implementation documents and thus among general legal acts. As it is a general legal act, there is consequently no need to serve the decision on the petitioner, as there are no parties or interveners in the proceedings. Instead, the decision, together with the elaboration and the opinions of the spatial planning authorities, is published in the Spatial Information System (‘PIS’).
Given that the legal nature of an act is, in line with the case-law of the Constitutional Court of the Republic of Slovenia, assessed by the legal norms contained in the act, we venture that it is questionable whether the site verification decision is a general legal act. The provisions of the site verification decision are of a particular and individual nature, since such a decision is issued on foot of an application by an individual investor. The decision itself relates to a specific situation of a specific investment. It is therefore also questionable whether it is correct not to apply the elements of the general administrative procedure, including the participation of the parties, in the procedure for the adoption of this act.
This is an important issue because the current regime does not allow for intervention by third parties, as it is premised on the fact that it is a general legal act. According to Art. 138(3) of the ZUreP-3, although the interested public has the possibility of submitting proposals and comments on the disclosed draft, this participation is by no means equivalent to the side intervention. Owners of neighbouring land who have a legitimate interest in participating in the procedure (e.g. owners of neighbouring land have a legitimate interest in intervening in the procedure because a deviation from the spatial planning conditions may lead to a deterioration in the value of their land) are thus deprived of their right to be heard as they are prevented from side participation in the procedure.
Regulation of the institute of site verification remains piecemeal, and we believe many changes lie ahead. It is not yet possible to predict the direction of these changes; however, we hope that going forward, the legislator will recognise the issues discussed here and take appropriate steps to improve the current arrangements and allow persons with a legal interest to participate appropriately.
Author: Manca Vrtačnik, Associate
1 Practice has shown that insisting on the solutions and conditions laid down in the zoning act at the time of adoption can lead to problems in the feasibility of investment plans when it is not possible to satisfy all the conditions.
2 With regard to the instrument of site verifications for individual developments, it is worth pointing out that these are only carried out on the basis of the OPN or equivalent.
3 The recommendations and explanations of the Ministry of the Environment state that the decision on site verification is an individual legal act against which an administrative dispute may be brought, while the case law of the Administrative Court takes the opposite view, namely that it is a general legal act, the content and purpose of which is not to regulate specific rights and legal relations (decision II U 100/2021-10 of 2 July 2021).
