What is a building restriction order?
A zoning closure ordinance is one of the land-use planning tools that can help municipalities better regulate development in their area. This measure restricts or prohibits, to the extent necessary, construction activity in a defined area if such activity could make it difficult or impossible to use the area in the future according to the forthcoming land-use planning documentation, or according to another decision in the area regulating the use of the area. However, this is only provided that a decision has already been made by the municipal council on the acquisition of spatial planning documentation or its amendment.
Necessity of restrictions
“Necessity of the restriction” is understood by the administrative courts as “the minimum level of restriction of the rights of persons which, however, still permits the fulfilment of the purpose of the building restriction”, while they also state that when assessing whether it is the least possible interference with the rights of the persons concerned, the stage of the process of making the amendment to the planning documentation in which the building restriction is issued must be taken into account. Thus, if the building restriction is adopted at a time when it is not yet clear what specific regulation will be the subject of the zoning plan, it is necessary to restrict construction activity to a relatively wide extent in order to fulfil the purpose of the building restriction (this applies in particular to the phase immediately after the decision to adopt the zoning plan or its amendment). Otherwise, a zoning measure on building closure could not be an effective instrument of regulation.
A zoning measure on building closure is issued as a measure of a general nature for a strictly necessary period of time, which may not exceed 6 years. The new Building Act thus establishes the maximum possible duration. A zoning measure on building closure can also be revoked by issuing an amendment to a measure of a general nature which will terminate its validity.
Who decides on the issuance of a building closure?
The municipal council decides on the establishment and issuance of the zoning measure on building closure. In municipalities where the council is not elected, the municipal council decides on the acquisition and issuance. This body decides on its own initiative, on the initiative of the authorised investor or on the initiative of a public authority. The draft zoning measure on building closure is now prepared by the promoter, which is the planning authority or the municipal authority, provided that it meets the qualification requirements laid down by law.
The proposal and its limitations
The proposal for a zoning measure on building closure must be prepared on the basis of a survey and evaluation of the affected area, land use planning tools and in accordance with the objectives and tasks of land use planning. The proposal must be published on the National Geoportal for Spatial Planning and may be objected to and commented on within 30 days of its publication. Once the zoning measure has been issued, it must be uploaded to the National Geoportal for Spatial Planning within 7 days.
A zoning measure of construction closure cannot restrict or prohibit maintenance work. It also cannot restrict or prohibit the implementation of a publicly beneficial transport or technical infrastructure construction defined in the territorial development plan or in the principles of territorial development. At the same time, an exemption may be granted from the zoning measure on building closure, which is issued by the authority that has taken and issued the zoning measure. In the context of granting an exemption, it must be demonstrated that the exemption does not jeopardise the purpose for which the zoning measure on building closure was issued. There is no appeal against the decision to grant an exemption.
When is it appropriate to impose a building closure?
It is appropriate to issue a zoning closure measure in cases where the zoning documentation or part of it is cancelled. The municipality, or its competent authority, may issue a zoning closure measure and prohibit or restrict construction in the area until the zoning documentation is amended, but only to the extent necessary.
However, municipalities should not be afraid of adopting a zoning measure on building closure – building closure can become another tool to regulate their territory effectively. Moreover, if the zoning measure is issued in the first stages of the preparation of the zoning documentation or its amendment, the municipality can proceed to a virtually complete ban on construction activity, as only such a ban is able to prevent undesirable construction.
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This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.