The provisions of the Spatial Development Act (SDA) on the existence of an applied detailed development plan (DDP) with regard to the regulation, including the street regulation, as a condition for the issuance of a building permit, are unconstitutional. In addition, the requirement for existing constructed streets, roads, or lanes as a condition for commencement of exploitation of construction works in the territories with medium and high construction also contradict the Constitution and significantly restrict the property right. This was ruled by the Constitutional Court (CC) in a Decision of 4 November 2021, declaring the provisions under Art. 148, Para 16 and Art. 178, Para. 3, item 5 in the part “in the territories with medium and high construction, as well as” of the SDA as unconstitutional. The quoted provisions shall not be applied and shall not regulate social relations as of the effective date of the Decision of the CC.

As we have written already, these requirements from the beginning of 2020 caused strong reactions in the society and the construction industry and as expected were disputed before the Constitutional Court.

By its Decision, the CC reaffirms the basic constitutional principle of inviolability of private property holding that  the restriction of the constitutionally protected right shall be  proportionate to the legitimate aim pursued and not to exceed what is necessary to achieve it. In the motives for the Decision, it is indicated that the adopted  standards are not proportionate to the aim for which they were established and violate unduly the property right. They entail a significant limitation of the contracting authorities’ rights without providing a counter obligation for the municipalities. Thus, in no way is the prevention of inaction on part of the municipal administration being stimulated, which in turn leads to blocking the investment and construction process.

On the other hand, the ensuring of public interest in relation to the urban development and planned construction of the settlements should not be neglected either. We are about to see whether any and which measures will be undertaken after declaring the indicated provisions as unconstitutional.

In addition, while for the pre-existing status quo it is clear that the provisions shall not be applied, we are about to see the effect of this Decision on already established relations between contracting authorities and municipalities. Pursuant to Art. 7 of the Constitution, the state shall be responsible for damages caused by illegal acts or actions by the National Assembly as a state authority and by the Members of Parliament as public officials.

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