Can the administrative implicit approval procedure be applied in the case of building permits?
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A building may be constructed, extended, improved or otherwise significantly modified, only after issuance of a building permit (autorizatie de construire). Although the competent local authorities have a certain term from the receipt of all documents to issue such permit, at times applicants are faced with a total lack of response.
In such a situation, the issue is whether and under which conditions the applicant may resort to the administrative implicit approval procedure. In our attempt to clarify this issue, a brief presentation of the applicable legal provisions may be useful.
Do we need building permits?
Yes. The field of construction works, as regulated by Law no. 50/1991 on authorizing construction works (“Construction Act”), provides that buildings may only be erected, (significantly) modified or demolished if a permit has been issued for this purpose by the competent authorities.
The building permit itself, as well as some of the documents to be obtained by the applicant for the issuance of such permit, are considered acts of authority of the (local) administration. As such, their provisions regard public interest and they must be entirely observed.
How does the implicit approval procedure work (“IAP”)?
In short, according to Government Emergency Ordinance no. 27/2003 on the implicit approval procedure (“Implicit Approval Act”), whenever the authorities do not provide a response to an application for issuance or prolongation of an administrative (i.e. public-law) permit required for carrying out an activity, such authorities are deemed to have tacitly approved the said application. We should mention here that lack of response in the context of the Implicit Approval Act implies a lapse of the relevant legal term for response without the applicant having received any answer from authorities (whether allowing or denying the application), nor any requests to provide additional documents and information.
Should the Implicit Approval Act be deemed to apply in a particular case, the applicant may (i) require the relevant authority (“Authority”) to grant them an official document (“Document”) acknowledging fulfilment of the procedure and the (implicit) approval of their initial application or (ii) file a claim with the competent ordinary court of law requesting the court to oblige the Authority to issue the Document. In the former case, should the Authority refuse to provide the Document, the applicant may bring suit requesting that the court oblige the Authority to issue the Document. In either case, the court shall verify the fulfilment of the conditions for granting an Implicit Approval Act claim and, in case of a favourable ruling, it may order the Authority to issue the Document.
In case the Authority later discovers that the Applicant has not fulfilled certain conditions that would have been essential for the issuance of a favourable response to initial application, it may require the Applicant to remedy such default. Only in the event that the nonconformities cannot be remedied, may the Authority annul the Document.
Scope of the Implicit Approval Act
The Implicit Approval Act offers a rather general definition of the permits which may be subject to the IAP, i.e. “administrative acts issued by competent Authorities allowing the applicant to carry out a certain activity ş…ţ”.
By contrast, certain permits (i.e. connected to the nuclear field, fire arm, ammunition and explosives, drugs, national security or other permits specifically indicated by Government Decisions) are specifically excluded from the applicability of the IAP.
Conclusion
In such conditions, the Implicit Approval Act may be interpreted as applying also to building permits. However, considering the nature of building permits, it is debatable whether a court of law will allow such interpretation. Especially, once the building is completed, the owner requires an additional administrative act, the reception of the works, in order to be able to lawfully use it.
The above aside, it should be duly noted that the Implicit Approval Act is not meant to cover flaws in applications for permits. It should however be an incentive for Authorities to respond to applications addressed to them. It is, in any case, an exceptional procedure that will usually only be resorted to as a last option.
In the end, is the Implicit Approval Act applicable to building permits? Debates are still on the table and case-law is scarce. Hopefully in the near future, the scope of the Implicit Approval Act will be better determined, offering individuals a more effective means to actively defend their rights also in the case of building permits.
Silvia Popa
Associate
Schoenherr si Asociatii
