Do the amendments to the Bulgarian Territorial Planning Act contradict the Constitution?
By request of the Ombudsman of the Republic of Bulgaria the Bulgarian Constitutional court has initiated constitutional case No 11/2021 for establishing the unconstitutional character of art. 148, para. 16 and art. 178, para. 3 of the Territorial Planning Act (TPA). These provisions (in their current edit) are adopted by the National Assembly in March 2021 after overruling the presidential veto. According to the new para. 16 of art. 148 of TPA, a construction permit in a regulated land plot is issued only when a detailed territorial plan has been applied with regard to regulation, including the street regulation for connecting the property to the road or street network. The legislative idea is to allow construction only after the street regulation has been applied. The application of this regulation though is the responsibility of the municipalities – only they have the right to expropriate plots, which fall into the borders of the city street regulation.
In the request of the ombudsman it is stated, that the issuance of a construction permit by the administrative authorities is conditioned by the performance of the own obligations of the latter to apply the street regulation. Such a limitation to the property rights is not proportional, since it is not connected to a certain period, but also does not provide an opportunity for citizens to perform the requirements themselves. The ombudsman points out that this requirement forces property owners to finance the expropriation procedures for the purposes of overcoming the hindrances for issuing a construction permit.
The provision of art 178, para. 3, p. 5 of TPA is contested in the part “in territories with medium and high building, as well as” and a conclusion is made that the ban on putting such constructions in exploitation until roads, streets and alleys introduce limitations, which do not correspond to the aim pursued by the legislation – to create infrastructure at the same time as the building in the land plot.
The Constitutional Court admitted the request of the ombudsman to a review on the matter of the unconstitutional character of these provisions. A verdict on the matter is still pending.
In accordance with a statement of the Supreme Court of Cassation from 29.07.2021 on the case, the contested provisions of the TPA contradict the Constitution of the Republic of Bulgaria, which guarantees the inviolability of private property.