30.05.2024

Land rezoning: an illusory solution?

In the practice of the courts of law, there are frequent disputes concerning the partial annulment of urban planning documents (i.e. PUG), regarding the inclusion of land in buildable areas in the green areas. The case law in this area is very varied and, not infrequently, the courts, in upholding the actions, oblige the competent authorities to reclassify the land in question, taking into account the considerations of the decision and within a certain time limit.

In terms of case law, practice has shown that the owners of land classified as green areas criticize the administrative acts approving the urban planning documents, by which the land was classified, and request the establishment of another classification that would allow them to build. The most common grounds are infringement of Article 1 of Protocol No 1 to the European Convention on Human Rights and the allegation of expropriation in fact, it being essential to adduce evidence to show that there is no objective justification for classifying the buildings in question as green areas. There are two distinct lines of interpretation in case law.

In the first direction, the owners concerned ask the courts to order the competent administrative authority to classify the urban planning in a specific territorial reference unit (TRU). In this respect, the courts may order, in full respect of the principle of the separation of powers, the rezoning of the property within a particular RTU, if, after having heard the relevant evidence in the case (including specialized technical expert reports in town and country planning), they consider that they have all the necessary elements available to them to carry out the rezoning[1]. Otherwise, the courts have to leave it to the discretion of the competent authorities to classify the land in an appropriate UTR, requiring additional steps and formalities to be carried out by the beneficiaries or by the competent authorities.

In a second direction, there are the decisions of the courts which, on the basis of the evidence adduced, consider that they are not in a position to admit applications for the reclassification of the properties concerned in a particular territorial reference unit, but can only oblige the competent authorities to carry out the reclassification procedures, taking into account the considerations of the decision. Such solutions, however, create the preconditions for the competent authorities to draw up and adopt a reclassification documentation which further infringes the property rights of the beneficiaries, in which case they will find themselves in the situation of having to go back to court to annul the administrative acts by which the new reclassification was carried out.

At such a stage, at least in theory, the act of justice has been fully accomplished, the persons concerned benefiting from the effects of final court decisions recognizing their right to the rezoning of the land they own: the courts establish that the rezoning must ensure the full exercise of the three attributes of the right of ownership - possession, use and disposal.

But very often in practice, the act of justice (the delivery of judgments in favor of an owner) proves insufficient because it cannot be enforced in an effective manner and the actual enforcement of the judgment is virtually illusory.

From the legislative point of view, the enforcement of court judgments against administrative authorities is regulated, as it is widely known, in the provisions of Art. 24-25 of the Law no. 554/2004 on administrative litigation. These legal provisions establish a mechanism that should ideally support persons who wish to effectively enforce their rights recognized by final court decisions in this matter.

However, it appears that the application of the provisions of Article 24 of the Administrative Litigation Act No 554/2004 can create serious bottlenecks, as the owner who has won the dispute and needs the assistance of the competent public authorities to carry out the urban rezoning may (sometimes) end up in an even more disadvantageous situation than when the land was classified as green areas. In concrete terms, the formalities for the reclassification of land are generally quite complex, as new urban planning documents have to be drawn up and the direct involvement of the specialized department of the competent public authority is required.

In other words, a simple final judgment annulling an unlawful urban planning classification and obliging the competent authorities to carry out the urban re-classification is often insufficient. According to Article 24, paras. (3) and (4) of Law 554/2004[2]:

(3) At the creditor's request, within the limitation period of the right to obtain foreclosure, which runs from the expiry of the time limits set out in para. (1) and which have not been culpably complied with, the enforcement court, by a decision issued with the summons of the parties, shall impose on the legal person, public authority or institution, as the case may be, a fine of 20% of the gross minimum wage per day of delay, which shall be paid into the state budget, and shall impose on the claimant penalties, under the conditions of Article 906 of the Code of Civil Procedure, for a maximum term of 3 months, calculated from the date of the communication of the decision on the fine.

(4) If, within 3 months from the date of the communication of the decision imposing the fine and awarding the penalties, the debtor culpably fails to perform the obligation provided for in the enforceable title, the enforcement court, upon the creditor's request, shall fix the amount to be owed to the State and the amount to be owed to him by way of penalties, by a decision issued after the parties have been summoned. At the same time, by the same judgment, the court shall determine, in accordance with Article 892 of the Code of Civil Procedure, the damages that the debtor owes to the creditor for non-performance in kind of the obligation.

On the basis of these legal provisions, interested persons may obtain both penalties for non-enforcement of the judgment and damages for non-enforcement in kind of the obligation (the obligation to carry out urban redevelopment). However, it is recognized that after the lapse of 3 months from the date of enforcement of the judgment imposing the fine and setting the penalties, the actual enforcement of a judgment is no longer foreseeable, so that the enforcement court may be called upon to determine the final amount of the penalties and any damages. The Supreme Court[3] has even ruled in this regard as early as 2018, delivering a preliminary ruling on a question of law in which it ruled as follows:

95. From the analysis of para. (4) of Article 24 it follows that after the expiry of the three-month period, the coercive means used are deemed to have been ineffective and enforcement is not possible. This is the reason why, after the expiry of the time-limit in question, final amounts are fixed both in respect of the fines imposed on the State and in respect of the penalties imposed on the creditor. In addition, the same judgment also awards damages for non-performance of the obligation, under Article 892 of the Code of Civil Procedure. The award of these damages for non-enforcement confirms, once again, that in the legislator's conception an enforcement of the judgment after the expiry of the term of 3 months from the moment of application of fines and penalties is no longer foreseeable.

96. In the light of that interpretation, it follows that the phrase 'until the enforcement of the obligation set out in the enforceable title' must be understood as meaning that, at the latest until the expiry of the three-month period laid down by Article 24(3) of the judgment, the period of three months laid down by Article 24(3) of the judgment is notforeseeable . (4) of Law No 554/2004, since, after the expiry of that period, it is no longer possible to enforce the obligation in kind (...).

98. Consequently, the court before which an application based on Article 24 para. (4) of Law No 554/2004 calculates penalties from the time indicated in the judgment delivered in the proceedings governed by Article 24 para. (3) of Law No 554/2004 , until the time of enforcement of the obligation provided for in the enforceable title, but not later than the date on which the three-month period within which the debtor had the possibility to enforce the obligation in kind expires.

It is therefore accepted that after the expiry of the period of three months from the date of the judgment imposing the fine and fixing the penalties, actual enforcement is no longer foreseeable, so that the enforcement court may be called upon to fix the final amount of the penalties and any damages.

This mechanism appears to be completely ineffective in the situation in question because, on the one hand, the competent authorities will no longer be able to be compelled to enforce in kind the obligation to carry out the urban rescheduling laid down by a final judgment and, on the other hand, any subsequent action by the persons concerned to seek an order to carry out the rescheduling will be subject to the negative effect of res judicata.

The act of justice appears to become completely ineffective, since the final judgments by which the courts order the competent authorities to carry out the urban rescheduling, if not carried out promptly, can only give rise to the right to late payment of penalties and damages for non-performance (and only for the three-month period stipulated by the provisions of Art. 24 para. 4 of Law no. 554/2004). Beyond these remedies and the fact that the execution of a court judgment is an obligation of result, the owners concerned are left with land without urban planning classification, their rights being seriously affected until the specific urban planning documents are drafted and approved.

An article signed by Oana Zamă, Partner - ozama@stoica-asociatii.ro - and Mircea Vasile, Junior Lawyer - mvasile@stoica-asociatii.ro - STOICA & ASOCIAȚII

[1] Judgment no. 3776 of 20/05/2015, Bucharest Court of First Instance - Second Administrative and Tax Litigation Section; Judgment no. 1325 of 23/10/2020, Cluj Court of Appeal - Third Administrative and Tax Litigation Section

[2] Published in M. Of., Part I no. 1154 of December 7, 2004

[3] Panel for the resolution of certain points of law - Decision no. 12/2018 on the examination of the complaint lodged by the Iași Court of Appeal - Administrative and Tax Litigation Section in Case no. 2.711/99/2016.