The Constitutional Court declared unconstitutional the provisions of Art. 148, para. 16 and Art. 178, para. 3, p. 5 in the part stating “in the territories with medium and high construction, as well as” of the Spatial Development Act (SDA) with its latest judgement No 17 as of 04.11.2021. (“the Judgement”).
The two provisions of the SDA were challenged by the Ombudsman and her request was also supported by the two Supreme Courts.
Art. 148, para. 16 of the SDA introduces the enforced Detailed spatial development plan (DSDP), including the street regulation, as a requirement for issuance of building permits.
According to § 22, para. 1 of the SDA, DSDP is considered enforced, including the street regulation, in the following cases:
- With the enforcement of an act, approving DSDP under art. 16 of the SDA, i.e. DSDP for unregulated territories or territories without enforced first regulation, in which the necessary areas for developing the objects of the green system, social and technical infrastructure are defined;
- With the conclusion of final agreements between the owners of neighboring land plots for settling the ownership of the parts from their land plots, designated to be included in neighbouring land plots.
- Acquisition of the necessary parts of private land plots by the municipality through expropriation procedures after payment of a fair compensation.
Art. 148, para. 16 of the SDA does not apply to the first case of the ones above, because it does not apply to territories to be regulated this way. In the last case, however, the enforcement of the DSDP depends entirely on the will of the municipality to initiate and complete the expropriation proceedings. The enforcement of street regulation is entirely an obligation of the municipality, and the owners of the affected properties are unable to counteract its inaction. They cannot undertake any actions to enforce the regulation, since private parties are not entitled to enforce street regulation plans themselves according to the SDA. Therefore, art. 190 of the SDA entitles investor to build within unregulated land plots by laying temporary roads.
In view of the foregoing, the Constitutional Court concludes that the imposition of the requirement of an enforced DSDP, including the street regulation, disproportionately affects and restricts the ownership of private parties, without posing any obligations to the municipality. The contested provision therefore contradicts art. 17, para 1 of the Constitution of the Republic of Bulgaria. It restricts the possibilities for construction of the buildings in accordance with the provisions of the DSDP and thus affects the right to use the land plot as an element of the ownership of citizens, guaranteed by the Constitution.
Art. 148, para. 16 of the SDA aims to achieve efficiency in the enforcement of DSDP with regards to the regulation. However, this goal should be obtained by means, which do not affect the ownership excessively nor do they infringe its inviolability, which is the case with the contested provision.
Art. 178, para. 3, p. 5 of the SDA provides that buildings shall not be put into operation, if “the construction of streets, roads or alleys, connecting the site to the street or road network and providing normal access to the respective regulated land plot have not been completed.” The Constitutional Court refers to all considerations for unconstitutionality set out above in relation to the provision of art. 148, para. 16 of the SDA.
In view of the above, the Constitutional Court proclaimed the two provisions unconstitutional.
