Under what conditions is it possible to build outside the plan following the decision of the Council of State 176/2023?

The recent decision 176/2023 of the Council of State regarding unplanned construction has caused turmoil in the sector.

Specifically, the Supreme Court, examining a case that reached the Council of State following a complaint about the construction of a plot of land in an area outside the Plan in Patmos, without access to a recognized public road, decided that the minimum area of 4 acres is not sufficient, but that, since 1985, the existence of a public space (road) is also required for the construction of a property.

It points out that this is true because, according to the Constitution, areas outside the plan “are not intended, in principle, for construction or tourist exploitation, but for agricultural, livestock farming, forestry, and public recreation.”

What does the decision of the Council of State mean?
-Firstly, the decision has immediate effect on the specific case that was heard.

Secondly, it does not have retroactive effect. In other words, building permits issued by the Town Planning Offices during that period are not revoked and are not invalid. However, property owners risk having their building permits revoked and their buildings deemed demolishable following a specific appeal to the Council of State due to a dispute.

-Thirdly, a legal precedent is created, which the administration cannot fail to respect because, according to the reasoning behind the decision, it is inconceivable that citizens would seek to build on plots that do not meet these conditions, nor can the town planning authorities issue building permits for them. Consequently, they cannot claim compensation, as this rule is considered “foreseeable for diligent buyers.”

-After carefully studying and analyzing the reasoning behind the decision, the state must take legislative action that respects the case law of the Council of State and provides a solution to the problem that has arisen, because it is responsible for not having defined the network of public roads in areas outside the plan, allowing properties outside the plan to be transferred and taxed as plots of land for the past fifty years. It should also create certainty in urban planning law and prevent property owners from being dragged into court by competitors and bad neighbors.

What are the immediate consequences of the Council of State’s decision? Sales and contracts for properties in unplanned areas throughout the country, which were based on the assumption that these properties were eligible for legal building permits, are now suspended due to the new decision of the Council of State.
The country’s urban planning offices (Building Services) will not issue preliminary building approvals and building permits for properties outside city and settlement plans, which were created between the entry into force of Presidential Decree 24-31. 5.1985 and Law 3212/2003 and have an area greater than 4000 sq.m. without frontage on a public road.
Thousands of small and large investments, mainly tourist-related, that have been included in the Development Law are being frozen because they will no longer be able to use the regulations for off-plan construction, issue building permits, and build with legal certainty.

On which streets are unplanned stadiums being built today? In order to establish the suitability and buildability of a stadium, the following conditions must be met on a case-by-case basis:

For pitches facing international, national, or provincial roads, which are by definition public, a minimum frontage of 45.00 m, a minimum depth of 50.00 m, and a minimum area of 4,000 m² are required.

For pitches facing municipal or community roads, as defined by Presidential Decree 25/28-11-1929, in conjunction with Presidential Decree 24/31-5-85, a minimum frontage of 45.00 m is also required, a minimum depth of 50.00 m, a minimum area of 4,000 m², and a requirement that these roads have been documented as being in common use by any legal means, or have been made public by relevant Acts of the Administration, or have been recognized as “Main or Sole,” or have been established by an Act of the Administration as roads that existed prior to 1923.

For plots facing rural roads, a minimum area of 4,000 square meters is required, a minimum frontage of 25.00 m, and, of course, documentation of common use, through the process of determining them as “pre-existing before 1923” or another legal process.

Plots facing roads in areas where no special decrees apply:
a. Facing roads bordering approved plans, as defined by street alignment lines,

b. Roads that have been constructed by public services through legal procedures and allow access to important projects, coastlines, archaeological sites, etc.

c. Roads provided for in the Land Consolidation Programs of the Ministry of Rural Development and Food,

d. Roads that have been constructed or formed in a designated beach zone require a minimum frontage of 25.00 m and documentation that these roads have been made public or have been placed in public use in a lawful manner and through lawful procedures.

How can it be proven that a road existed prior to 1923?
With old contracts dating back to 1923, which explain in detail the evidence proving that the road existed prior to 1923. In other words, the contract must specifically mention that the property borders a road.

In cases where the property lacks an old title but reference is made to the street in the contract of the neighboring owner.
With an excerpt from the 1945 GYS map, which shows the street, with a specific start and end point.

Which roads are expected to be designated as public roads?
In order to address this long-standing problem of the lack of designation of public roads in areas outside the plan, the Ministry of Environment signed a relevant Ministerial Decision (Government Gazette 2671/B/31-5-2022) setting out the technical specifications, criteria, and conditions for the preparation of studies to record the country’s existing road network.

The Ministry also determined the first areas in which road identification studies will begin immediately, involving sixty-nine (69) municipalities, specifically municipal units that are island areas with intense residential pressure and tourist exploitation.

What are the basic criteria for identifying the public road network? The basic criteria for recording the road network are:

-The location of road sections in relation to the approved street plan and/or the boundaries of designated settlements.

-If the road sections are included in the already recognized or designated road network of the DE.

-If they exist by the will of the state or by other legal means and are considered public property

-If they have been recorded as roads in the cadastral diagrams of the National Cadastre in a functioning Cadastre for more than five years.

-If they have been deemed to be public property by virtue of a final court decision concerning the public use of the road and/or

-If they appear in aerial photographs taken closer to 27.07.1977.