The petitioner is the owner of plots of land in a small municipality in Central Bohemian Region, which the municipality’s 2002 zoning plan classified as an area with functional use for individual housing. In accordance with this use, he undertook various preparatory steps, including obtaining the municipality’s consent to establish an access ramp to the local road and, on the basis of a final and enforceable permit from the municipality, built a water main with a service connection. On 21 June 2022, he was granted a joint permit for the construction of a family house, which, however, did not acquire legal force due to the filed appeal.

The situation changed fundamentally in the course of the appeal proceedings. The new zoning plan, effective from 22 July 2022, newly classified the plots in question as a public space area with a predominance of greenery. The petitioner’s project thus became contrary to the new regulation. The joint permit was subsequently annulled in the appeal proceedings and the application for its issuance was rejected precisely by referring to the incompatibility with the new zoning plan.

The petitioner challenged the zoning plan with a petition to annul the measure of a general nature. The Regional Court in Prague dismissed his petition by a judgment of 20 January 2023, Ref. No. 54 A 86/2022-56. The Supreme Administrative Court (hereinafter also referred to as “SAC”) subsequently dismissed the cassation complaint by a judgment of 26 June 2024, Ref. No. 8 As 21/2023-58. The petitioner then turned to the Constitutional Court (hereinafter also referred to as “CC”).

How the administrative courts ruled

The Regional Court in Prague acknowledged an interference with the petitioner’s right of ownership but found it to be proportionate. According to the Regional Court, the municipality pursued legitimate aims: caring for an unnamed watercourse flowing around the petitioner’s plots of land, protecting its floodplain as a significant landscape feature, and maintaining the urban concept of preserving protective strips along the watercourse. In doing so, the Regional Court also accepted the municipality’s argument that placing a family house on a narrow plot of land in close proximity to existing buildings would infringe on the neighbors’ privacy as it would allow overlooking their gardens.

At the same time, the Regional Court described the objections submitted by the petitioner in the process of drafting the zoning plan as “very lax” and stated that they were essentially not even objections, but rather unspecified demands.

The SAC concurred with this assessment and added that even the issuance of a non-final building permit by itself does not mean that the regulation of the affected area cannot be changed.

Proportionality criterion in the narrower sense

The Constitutional Court reproached both administrative courts for a fundamental shortcoming in their review of proportionality. In reviewing the zoning plan, it is necessary to assess the proportionality of the interference with the right of ownership based on three criteria – the suitability of the chosen measure, its necessity, and finally its proportionality in the narrower sense, i.e. whether the harm caused to the owner is not disproportionate in relation to the objective pursued. According to the Constitutional Court, the administrative courts examined only the first two criteria but overlooked the third, and in the CC’s view, the decisive step, namely weighing the specific significance of the interference with the petitioner’s rights against the importance of the public interest that the amendment to the zoning plan is intended to protect. The CC stated that “it was precisely the proportionality criterion in the narrower sense … that was not duly assessed by the administrative courts”[1].

This shortcoming was also contributed to by the evaluation of the petitioner’s objections. The Regional Court labeled them as “very lax”[2] and the SAC deduced from their insufficient articulation a limited scope of judicial review. The Constitutional Court rejected this approach. In his objections, the petitioner referred to the ongoing permitting proceedings, to the issued binding opinion of the planning authority, and to the existing functional use of the plots – according to the Constitutional Court, such objections are sufficiently specific, and the municipality could have discerned what the petitioner was seeking and why. The designation of the objections as “lax” thus led to an unjustified narrowing of judicial review, as a result of which the administrative courts did not assess the proportionality of the interference in its entirety.

The significance of a non-final permit

The core of the Ruling is the legal conclusion regarding the position of an owner who holds a non-final permit for a construction project. Under the existing practice of administrative courts, it was generally accepted that the authority responsible for drafting the zoning plan must take into account final decisions, but it was less clear what weight to assign decisions that had not yet acquired legal force.

The Constitutional Court has now formulated a clear principle that while the existence of a non-final permit for a construction project, in conjunction with the principle of the continuity of zoning, does not rule out the possibility of amending the zoning plan in a way that restricts the owner’s right, there must be “very serious reasons in the form of a real and intense interference with other constitutionally guaranteed fundamental rights and freedoms or a serious conflict with the public interest” for doing so.[3]

By this conclusion, the Constitutional Court did not accord the non-final joint permit the nature of an acquired right, but rather determined that a non-final permit, in conjunction with other circumstances of the case, is not irrelevant in terms of constitutional protection. It may establish a legitimate expectation that must be taken into account when weighing the public and the owner’s private interest. Whereas an acquired right is typically tied to a final decision, legitimate expectation represents a weaker, yet still legally relevant position. Its existence does not prevent a change in regulation, but it substantially raises the requirements for its justification.

What matters are not only formal decisions – a legitimate expectation can also be based on a combination of various steps taken by public authorities. The Constitutional Court explicitly stated that good faith can also be established by other actions of public authorities capable of confirming for an individual the correctness of his or her approach and the feasibility of the intended project.[4] In the case under review, the petitioner obtained a number of more or less substantial “assurances” from public authorities – including the municipality itself. The municipality thus found itself in a contradictory position, where on the one hand it granted the consents necessary for the permitting proceedings, while on the other hand it was simultaneously preparing a zoning plan that effectively thwarted the project. Such conduct is difficult to reconcile with the principle of protection of trust in the activities of public administration, which the CC referenced in the Ruling by citing Section 2 paragraph 3 of the Administrative Procedure Code. The CC also added an important corrective measure, according to which it is always necessary to assess whether the owner’s preparatory steps were not opportunistic – i.e. initiated only in response to the proposed amendment to the zoning plan. If that were the case, the protection of legitimate expectation would not apply.

The quality of arguments concerning public interest

The Constitutional Court also commented critically on the specific reasons by which the municipality and the administrative courts substantiated the proportionality of the interference. Given the nature of that unnamed watercourse, it questioned whether one could even speak of a need to protect a floodplain. In weighing the mutually conflicting rights, a mere reference to a given urbanistic concept of green belts along the watercourse was deemed too general to justify, by itself, an intervention with such a serious consequence. It also recalled that it is not within the competence of the courts to evaluate which specific solution should be preferred from the viewpoint of zoning.[5]

The Constitutional Court also thoroughly discussed the argument regarding the neighbours’ privacy supposedly being disrupted by “overlooking” their gardens. Strictly speaking, such reasoning would allow any new development near existing houses to be excluded, since every new building carries some risk of “visual” contact with neighbouring properties. Therefore, such an argument, on its own, cannot be considered a sufficient reason for changing the functional use of the land.

In the context of the Ruling’s main conclusion, this criticism is especially significant. If the amendment to the zoning plan is to stand despite the existence of a non-final permit, it must be justified by very serious reasons. It is not enough to invoke an abstractly legitimate objective; it is necessary to clarify why, in this specific case, the public interest prevails over the strong private interest of the particular owner.

What the Ruling implies for practice

For owners and investors whose plots are affected by an amendment to the zoning plan, it is essential that their protection does not start only with the legal force of the permit. If a construction project has long been in line with the zoning plan, if at least a non-final permit has been issued, and if public administration has reinforced the owner’s belief in the feasibility of the project through its conduct, a legitimate expectation deserving constitutional protection may arise. Although this does not prevent an amendment to the zoning plan, it significantly increases the requirements for its justification.

For municipalities, the Ruling means that changing the functional use of plots of land where permitting proceedings are already ongoing requires qualified and specific reasoning. General references to an urbanistic concept or an abstractly formulated public interest may not be sufficient. If the municipality itself contributed by its prior actions to the owner’s reasonable assumption of the project’s feasibility, it must fully reflect this circumstance in its reasoning. The more strongly the public authority supported the owner’s belief in the feasibility of the project, the more convincing the reasons must be that justify the subsequent change of regulation.

The main contribution of the Ruling lies in shifting from a strictly formal approach to the issue of the legal force of a permit to a material assessment of the individual’s trust in the public administration and the advanced stage of the construction project. In practice, this means stricter requirements for justifying amendments to zoning plans, and at the same time stronger protection for developers whose trust in the feasibility of the project was reinforced by public authorities. In broader terms, the Constitutional Court formulated an important rule: the greater the effort that has already been expended in preparing the implementation of a project, the more intense the interference with other constitutionally guaranteed rights or public goods must be for the amendment to the zoning plan to stand.

[1]Paragraph 21 of the Ruling.

[2] Paragraph 3 of the Ruling.

[3]Paragraph 18 of the Ruling.

[4] Paragraph 17 of the Ruling.

[5]Paragraph 21 of the Ruling.

Source: epravo.cz