Case study: annulment of Local Council Decision by which approval of PUD was rejected
The court admitted the claim by which the cancellation of a Local Council Decision rejecting a PUD for the construction of buildings in Apahida was requested, given the unmotivated nature of the votes by local councilors rejecting or abstaining.
Although the Cluj Tribunal ordered in first instance the local council to issue a decision approving the PUD documentation, the Cluj Court of Appeal quashed that part of the decision, holding that the court cannot substitute the local authority in analyzing the legality of the urban planning documentation.
Relevance of the case
With regard to the reasoning developed by the Cluj Court of Appeal in this case, it is necessary to emphasize that one should not rule out a priori the possibility of obtaining a court judgment obliging the authority to approve an urban planning documentation. But in order to obtain such a solution, it is required that either the refusal by the local authority is based exclusively on grounds that fall within the competence of the court (e.g. refusal is based on legal grounds which the court can censor), or that in the case of an unjustified refusal evidence (possibly technical judicial expertise) be produced to show the legality, including from a technical perspective, of the urban planning documentation.
Real-estate and construction lawyer Cluj: presentation of the case
In fact, the owner of a real estate plot and building requested the Local Council of Apahida Commune to adopt a decision for the approval of a Plan Urbanistic de Detaliu (PUD) for the construction of collective housing buildings of P+2E+M, fencing, exterior arrangements and utility connections.
The need to adopt a Local Council Decision resulted from the provisions of the Urbanism Certificate issued for the purpose of demolishing the existing building. According to this certificate, the intended use of the land in question, established by the General Urbanistic Plan (PUG) of Apahida Commune, is for housing and complementary functions, classified in UTR Le1, and the elaboration of a PUD was required to obtain the construction permits.
The owner’s request for PUD approval was rejected by a decision of the local council. Against this negative solution, a prior complaint was filed under the conditions set by art. 7 of Law no. 554/2004 (administrative litigation), a remedy which was rejected by the local authority.
Case taken over by the Brisc Legal Cluj team
Therefore, the owner decided to file a lawsuit against the unjustified refusal of the public authority to favorably resolve his request for PUD approval, relying on the expertise of lawyers specialized in urbanism litigation.
The courts at the level of Cluj-Napoca municipality ruled in favor of the claimant and annulled the Local Council Decision rejecting the PUD as unlawful.
The Cluj Tribunal found that the decision of the local authority did not present the reasons underlying that administrative act.
Moreover, the motivation of the contested administrative act was all the more necessary given that the negative vote was given in a context in which no breach of the administrative acts in force had emerged in relation to the matter at hand, and therefore the refusal to approve the urban planning document required for construction should have been firmly substantiated.
Also, where the rejection of the urban planning documentation was made by failing to assemble the required number of votes, it becomes evident that the abstention from voting by local councilors (which is counted as a negative vote) cannot in itself constitute the justification for the PUD rejection, since the vote is only the result of a deliberation based on a rationale that should be reflected in the administrative act.
Court’s ruling
The court found that the lack of motivation in the Local Council Decision rejecting the PUD makes, on one hand, the recipient unable to know the reasons underlying the rejection of his request, and on the other hand makes the court’s review of the legality and justification of the refusal ineffective.
The Cluj Tribunal determined that the unjustified refusal of the Local Council of Apahida Commune to adopt a decision approving the requested PUD for construction constitutes an illegal conduct within the meaning of art. 2, lit. i of Law no. 554/2004. Thus, the refusal to resolve the request favorably amounted to an abuse of power by the local authority.
Further, with reference to the full jurisdiction nature enshrined in art. 18 of Law no. 554/2004, the Tribunal found that the claimant did not request, via the PUD documentation, derogations from the General Urban Plan of Apahida and that the documentation appeared complete in relation to the requirements set out in the urbanism certificate.
Consequently, the court also ordered the local council to adopt a decision approving the PUD documentation.
Appeal and final dispositions
However, on appeal the Cluj Court of Appeal partially modified the solution, namely only as regards the obligation of the local authority to approve the PUD documentation.
Thus, it was held that the court of justice cannot substitute for an administrative authority in analyzing the submitted request, nor interpret the request as fulfilling the legal conditions based solely on the favorable opinion of a specialty commission, meaning that the local authority should no longer refuse unjustifiably the approval of the PUD documentation and should analyze it on merits from the perspective of its legality.