Area: Poslovni SOS
Competent authority: MOP
EZU URL: .nan
Initiative ID: 596
Initiative accepted and completed: '2015-08-14'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-06-12'
Initiative published: '2015-06-12'
Initiative submitted: '2015-06-08'
Response from the competent authority: RESPONSE FROM THE MINISTRY OF ENVIRONMENT AND
  ENVIRONMENT:We note that in the present case the immediate problem is not with obtaining
  the building permit itself, but with obtaining the consent. This is not merely a
  semantic difference, since this dissociation raises the question of the power of
  supervision over the conduct of consent-granting authorities, both in general and
  in the present case. The authorising authorities do not fall within the competence
  of the Ministry of the Environment, but rather within the competence of the line
  ministry whose legislation constitutes the legal basis for the granting of their
  consents. This is unequivocally clear from Article 49c of the PGO-1, which you refer
  to in this connection, as well as from Article 50 of the PGO-1. The material basis
  for the decision-making of the consent-granting authorities is therefore not provided
  by the ZGO-1, but by a sectoral regulation, and therefore the incorrect application
  of a material regulation in this case does not constitute a breach of the ZGO-1,
  but of a sectoral regulation. This is an issue that we have been raising with the
  MoE for a long time, as there is a constant understanding that everything that happens
  in the context of a building permit is subject to (narrower) building legislation.
  The fact is that the competent ministries are responsible for the substantive implementation
  of their respective sectoral legislation, which means that they are also obliged,
  in accordance with the civil service regulations, to provide appropriate clarifications
  and instructions and to act in such a way as to achieve a homogeneous practice in
  the implementation of the regulations in their field of work. We are also familiar
  first-hand with the problem of 'passing the ball' between the municipal public infrastructure
  manager and the second tier of the municipality when it comes to the authorisation
  of facilities of national importance. In this case, following complaints from the
  investor and our urging, the Inspectorate of Public Administration (the issue was
  the implementation of the ZUP and the functioning of the self-governing local authority,
  as in the present case) and the line ministry (in our case it was roads) intervened.
  We believe that it is mainly through such consistent supervision that it is possible
  to establish a lawful practice and a suitable investment environment, and this requires
  action by all the line ministries whose regulations are implemented through the
  instrument of consent. Action must concern both the correct granting of consents
  where they are required and, above all, a radical overhaul of the need for consents.
  The MoE has thus recently been actively examining which interventions are reasonable
  and necessary to require consents, and which interventions can be exempted from
  this obligation without harming the public interest. The same effort is needed in
  other ministries.The proposal to address the problem of consent-granting authorities
  in the new construction legislation by providing for the possibility for administrative
  units to check whether project conditions have a proper legal basis is one possible
  approach that we are considering, but there are some specific reservations. Firstly,
  project conditions are already not mandatory today. Secondly, there is the question
  of the competence of the administrative staff, who, at least initially, certainly
  do not know all the relevant legislation in such detail as to be able to negate
  the conditions of the consent-granting authority without a proper professional justification
  (perhaps exceptionally in obvious cases), and the engagement of experts to clarify
  these issues can be time-consuming and costly for the parties. Last but not least,
  such an approach can also be seen as a kind of sop to those administrative authorities
  and public authority holders entrusted with the provision of such public service(s).
  In short, it is a question of compensating for inadequate implementation of regulations
  and inefficient management of procedures by additional procedures or assumption
  of powers.RESPONSE FROM THE MINISTRY OF INFRASTRUCTURE:We are only aware of the
  case in question from the attached letter, which is rather vague as regards a concrete
  answer. We would like to point out at the outset that the letter itself indicates
  that the matter also concerns consents in other areas which are not under the competence
  of the Ministry of Infrastructure (hereinafter referred to as "MoI").We therefore
  provide hereafter a reply which refers to the legislation in the field of roads,
  while for the legislation in the field of other consents you will have to refer
  to the competent ministries.The Road Act (Official Gazette of the Republic of Slovenia,
  No 109/10, 48/12, 36/14 - Decree of the European Parliament and of the Council No
  46/15; ZCes-1) provides for consents for the erection of structures in the buffer
  zone of public roads, i.e. in the area adjacent to the public road where the use
  of space is restricted. This means that land along public roads is owned by private
  persons, but the importance of the location (i.e. it is located along a public road)
  necessitates certain restrictions on it.  Article 97 of the Law on Public Roads
  establishes that in the buffer zone of a municipal road (which is very precisely
  defined in paragraph 4 in terms of its width and the way in which it is measured),
  the use of land is restricted. Within the buffer zone of a municipal road, development
  is only allowed with the consent of the municipal road operator. The law clearly
  defines in which cases consent may be granted, which means a contrario that refusal
  of consent must be explicitly justified on the basis of a lack of compliance with
  the conditions laid down by law. The proposed encroachment on the buffer zone must
  therefore not affect the protection of the municipal road and the traffic on it,
  its widening for future traffic development and the protection of its appearance.
  It is only on the above grounds alone that the operator, as the competent consent-granting
  authority, may refuse to grant consent. We would like to reiterate that the above
  applies only from the point of view of the regulations protecting the protection
  of transport infrastructure, which does not mean that other regulations from other
  sectors are not also applicable. For example, land may lie within the buffer zone
  of a public road, but it is also subject to water protection regulations. However,
  because the land is in the buffer zone of a public road, the road operator is immediately
  "blamed", even though the implementation of other regulations has nothing to do
  with the management of the road. We stress this point because it seems that this
  could be the case in the present case.The position of the MoD can largely be agreed
  with. However, it is simply not possible to simply withdraw consent. The consequences
  for investment might be encouraging in the short term, but in the longer term we
  would certainly find that the damage (including the overall social damage) is too
  great. After all, consents for encroachments on the buffer zone of a public road
  are primarily for the protection of the transport infrastructure and the traffic
  on it. Surely we are all aware of what road safety means, especially in our country.
  Adequate road safety (and infrastructure is one of the most important factors affecting
  road safety) has a direct impact on human lives and injuries. We certainly agree
  that the protection of human life must be by far the most important asset. At DI,
  we have consistently advocated this. The system of granting consent for encroachments
  on the buffer zone of a public road is an old and well-established institution,
  also known and established in comparable jurisdictions, which may have helped to
  prevent many a road accident without our being aware of it. We are therefore asking
  ourselves who will ensure road safety and who is prepared to take responsibility
  for the consequences, not least the endangerment of human lives in the case of the
  abolition of consents. At DI, we therefore have no intention of interfering with
  the system of powers of the road manager to ensure the safety of the infrastructure
  that he manages, which, after all, is his responsibility. Whoever proposes such
  a measure should also take the appropriate responsibility. We at DI also believe
  that the measure is not disproportionate. We must ask ourselves what a buffer zone
  actually is. It is an area of no more than 10 metres measured from the outer edge
  of the road surface, and this is only for local roads, the highest category of municipal
  roads, while for public paths and municipal cycle links the buffer zone is even
  narrower (5 metres and 2 metres respectively). It is a relatively narrow strip of
  land alongside the road, where it is clear that many interventions can affect visibility)
  or the possibility of proper maintenance of the road. This does not mean that all
  encroachments are unauthorised, but only those that affect statutory interests.
  On the other hand, it is true that the procedure described, as it is to be followed
  in the present case, is grossly inappropriate for the investor and rightly arouses,
  even in this country, resentment against the way in which consents are granted.
  However, this case is only indicative of a broader problem that we at the Ministry
  of the Interior have been observing and pointing out for a long time, namely irregularities
  in the conduct of administrative procedures, or rather, inadequate knowledge of
  the administrative procedure or the functioning of the administration, which includes
  the municipal administration. In this particular case (assuming that it really concerns
  road regulations!), we first became aware that the consenting authority was a company
  which was supposed to be responsible (under the authority of the municipality) for
  a number of areas, including roads. Consent for encroachment on the buffer zone
  of a public road is an administrative act issued in an administrative procedure,
  in accordance with the rules of administrative procedure, which is left exclusively
  to the road operator, i.e. the municipality, as is also clear from Article 95 of
  the ZCes-1. The law does not provide for a public authority for this task. The road
  legislation explicitly provides for the granting of consents for encroachments into
  the buffer zone as a public power only in the case where a private law entity holds
  a concession for the construction and management of the road (in the existing system
  this is only DARS, d.d. , which is also the owner of the motorways). Of course,
  it is not excluded that the operator authorises someone else to carry out individual
  tasks in the procedure, and this is also the established practice in such cases.
  In any event, the decision on encroachments into the buffer zone is not a matter
  of arbitrary discretion, but a strictly professional, indeed technical, matter which
  cannot be decided by the average administrative employee. The impact of the proposed
  facility on the protected interests must be determined from a purely technical point
  of view and on the basis of technical expert criteria. For this reason, the consent
  procedure also requires appropriate project documentation, since only on this basis
  can it be established whether the conditions for granting consent are met. The rules
  of administrative procedure require that the refusal of a party's application must
  be duly reasoned, in such a way as to make it clear to the party what the reasons
  were which led the authorising officer to take the decision, on what basis he relied,
  and so that the administrative act can be properly examined in the course of its
  review. Such an act will be issued in the administrative procedure by the authorised
  decision-maker or prepared by the authorised procedure officer, who will also ascertain,
  in the light of the rules of the CPR, whether the act is adequately reasoned - that
  is to say, at least whether the reasons for refusing the consent are clearly apparent
  and whether those reasons have a proper legal basis. This is the task of the competent
  officials. We assume that the Administrative Inspectorate will check who issued
  the consents in the specific case and who had the relevant powers, as well as how
  the rules of administrative procedure were followed in the sense described above.
  In this context, it is also necessary to assess the investor's allegations, with
  which we fully agree, that it is not permissible to impose conditions which have
  no basis in clear legal grounds for refusing consent. The delimitation of the road
  is a matter for another procedure, which has nothing to do with this procedure.
  The authorising authority must not therefore make the granting of consent conditional
  on any other proceedings which it may have in relation to the investor. We expect
  the administrative procedure to provide an answer to this question and to sanction
  such a breach. In conclusion, the fundamental problem that we see in the DI is the
  inadequate knowledge of the rules and principles of the ZUP. This is also a problem
  that we are often confronted with at the MoI when, in cases of assistance to the
  authorities under the Local Self-Government Act, we find that we often have to interpret
  the basic rules of the ZUP, such as the legal bases, the reasoning of the decisions,
  etc., as we see in this particular case. In most cases, it is not so much a question
  of the substantive interpretation of the law as of the correct conduct of the procedure.
  It is undisputed that the correct conduct of the procedure in the vast majority
  of cases also leads to a substantively correct and lawful decision. Unfortunately,
  we note that the trend of ignorance of the rules of the Administrative Code and
  of the administration is only getting worse, and we therefore appeal to the Ministry
  of Justice to take an immediate and systematic approach to solving the problem,
  and to ensure that properly qualified persons are involved in the procedures for
  issuing administrative acts. The fact that we are even discussing reasons for refusing
  consent which have no basis in law is also an indication that the procedure has
  been inadequately managed. Individual cases, however shocking, arising from a blatant
  disregard for the rules of the CPA cannot, in our view, be a reason to change otherwise
  appropriate legislation on the granting of consents. The first step is to ensure
  that the rules are properly implemented. Unfortunately, in specific cases, deliberate
  bullying cannot be completely ruled out, but this is punishable by criminal sanctions.At
  the MoI, we have been carrying out exemplary and effective monitoring of acts and
  practices of municipalities in accordance with the Local Self-Government Act for
  many years. In this respect, we would like to point out that the supervision of
  consents issued by municipal administrations is not entirely comparable to the supervision
  exercised over administrative units in the procedures for issuing building permits.
  The municipality is the owner and operator of the road, where it exercises its prerogatives
  on the basis of the legislation, taking into account the principles of local self-government,
  which means that the supervision of the MZI is somewhat limited, i.e. within the
  scope of the powers of Chapter X of the CLA. In the case of an individual act of
  a municipality, the Ministry, in addition to providing appropriate advice and assistance,
  has the possibility of overturning or annulling the decision under the right of
  supervision, which is an extraordinary remedy.Finally, let us make it clear that
  everything that has been described above applies only in the case of a public road,
  i.e. a road that is defined in a municipal decree on categorisation. The municipality
  may also own roads that are not categorised. In this case, however, MZI has no competence
  whatsoever.
Text file: 596.txt
Title: Obstacles in the building permit process
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=596
