New "short circuit" with building in off-plan areas arises with a new decision of the Council of State (Council of State Decision 992/2023). The Supreme Court judges "put the brakes" on the issuance of building permits and the construction of rural buildings, in derogation of a 1985 Presidential Decree. In particular, they accepted a petition for annulment against a decision of the Region of Sterea Ellada, which approved a derogation from the current urban planning provisions on off-plan construction for the construction of a rural warehouse on a non-parcel of land in South Evia.

Precedent

The new decision produces a precedent that comes to add to the decision 176/2023 of the CoE, with which the Supreme Court of Cassation had put an end to building permits in off-plan areas of Patmos because they did not have a "face" on a recognized road.

Indeed, in the summary of the recent decision published by the CoE, it is stated that "the lawsuit preserves its subject matter as to the approval of the waiver, which is not exhausted in one application, but may be applied in the future". It is also noted that deviations from the fixed building conditions of an area, and even when they refer to certain real estate, must belong to the category to which they are spatially linked and are of a regulatory nature. These principles also apply to the building conditions in areas outside the plan, which, according to the established case law of the Council of State, may not be more favourable than the conditions within the plan, nor may they lead to a change in the character of the areas outside the plan.

The Presidential Decree on off-plan building

With regard to the provisions of the Decree of 24-31.5.1985 providing for the approval of a derogation from the normal conditions for building outside the plan, the decision states that "do not provide for legitimate criteria for granting the derogation". In particular, the Supreme Court judges point out that, the reason of public interest served by the derogation is not apparent, the subjective and objective conditions for its approval are not clearly defined, in particular as regards the definition of the beneficiaries and the minimum limits of area, face and depth of the land for the approval of the derogation, and where ceilings or thresholds are set, the margin of tolerance is unacceptably large.

Parcels

"This favours the building of disadvantaged parcels, the partitioning of rural plots and their eventual land consolidation. Finally, no escalation of building conditions is not provided depending on the particular character of the area, but all areas are treated uniformly, "say the judges of the Council of State, stressing that this is obviously due to the fact that the critical provisions reproduce in essence the provisions of an older PD of 6-17.10.1978, which was adopted before the reform of the legislation on spatial planning, environment and antiquities and is not coordinated with it.

The shortcomings of the 1985 Decree "cannot be remedied in dealing with each specific case, because the criteria for granting the derogation must be defined in advance in the law and not be set on the occasion of its application", the decision notes. In the absence of a clear regulatory framework and legal criteria, the approval of the derogation, as underlined, "does not constitute the application of the law by issuing an individual administrative act, but, in essence, regulatory determination of building conditions for each specific stadium by the deciding body, in the exercise of impermissibly wide discretion".

The new decision of the Plenum of the Council of State reverses the facts and the building of rural buildings in off-plan areas, which issue building permits based on the 1985 PD. Besides, the Supreme Court of Cassation has consistently held that building is not the intended use of areas outside the plan, but serves agricultural, livestock and forestry exploitation as well as recreation.