Landmark decision against building outside the plan

The Council of State puts the brakes on unplanned construction with a decision that blocks the construction of a hotel complex in Mykonos.

Overturning a contrary court decision that allowed construction on a plot of land slightly larger than 10 acres, the Council of State canceled the building permit for the construction of a 5-star hotel with a swimming pool.

In practice, the Supreme Court is tightening up the current regime and case law, highlighting as a key point in determining whether or not construction is permitted in an unplanned area not only whether the site has “faces” a public space, but also how the road on which it “faces” and provides access to it came into being.

Uncontrollable

Attempting to limit the uncontrolled unplanned construction and the frequent circumvention of urban planning regulations for rational construction, the Council of State no longer accepts that it is possible to recognize a road as recognize a road as municipal or community, by means of a simple administrative act.

This is because the designation of a road (which may have been made privately) has urban planning implications, as it makes properties that “face” that road buildable in principle.

Since the relevant legislation also activates, in such cases, the derogation from the rules on plot sizes (with the result that much smaller plots of 1.2 or 2 acres or 750 square meters, etc. are built on), thereby increasing the density of construction, the Council of State concludes that the designation of roads constitutes indirect urban planning (“quasi-urban planning”).

For this reason, the recognition of a municipal or community road cannot be done by a simple administrative act but by the issuance of a Presidential Decree, following a relevant constitutional and urban planning review of legality by the Council of State.

Moreover, the classification of other roads (as international, national, provincial) is determined by urban planning, which is now necessary in general (for municipal, community, and agricultural roads), especially when it concerns areas of natural or cultural environmental protection, such as all islands and many other areas. rural), and even more so when it concerns areas of natural or cultural environmental protection, such as all islands and many other zones.

Basic rule

The Council of State considers it a basic rule for construction that the plot of land “faces” a public space—a road—that did not arise from private will. However, it leaves a “window” open in this case, provided that a relevant Presidential Decree is issued as a product of urban planning.

In this particular case, the hotel obtained a building permit after the mayor certified that it faced a public road (which was described as a rural road in another document).

The Council of State, accepting a resident’s application, canceled the building permit because a presidential decree should have been issued indicating whether the road was built on private land whether it is the only or main means of access, since the entire island is a special protection area, regardless of whether its designation makes the property buildable (3965/15).