U-I-262/01

Reference no.:
U-I-262/01
Objavljeno:
Official Gazette RS, No. 108/01, Official Gazette RS, No. 35/2002 and OdlUS XI, 48 | 21.03.2002
ECLI:
ECLI:SI:USRS:2002:U.I.262.01
Act:
Ordinance on the Spatial Planning Conditions for J3 Srednje Jarše "Ob razbremenilniku" Area and J4 Jarše Center Area (Official Gazette of Domžale Municipality, No. 10/99), Arts. 4.2.2, 13 Domžale Municipality Act No. 35101 - 193/00 - 36, dated 14 September 2000
Operative provisions:
Art. 4.2.2 of the Ordinance on the Spatial Planning Conditions for J3 Srednje Jarše "Ob razbremenilniku" Area and J4 Jarše Center Area (Official Gazette of Domžale Municipality, No. 10/99), is annulled. Art. 13 of the Ordinance on the Spatial Planning Conditions for J3 Srednje Jarše "Ob razbremenilniku" Area and J4 Jarše Center Area (Official Gazette of Domžale Municipality, No. 10/99), is abolished. Domžale Municipality Act No. 35101 - 193/00 - 36, dated 14 September 2000, which was issued in addition to the project of the use of land in the area of morphological unit ZO 2, together with this project, is not a regulation and might not be applied.
Abstract:
A municipal technical service is obliged to carry into effect the possible special requirements, limitations or conditions for planning environment modifications prior to the commencements of the elaboration of spatial planning conditions. The Urban Planning and Other Forms of Land Use Act (hereinafter ZUN) does not foresee the approval by the municipal technical services of the already planned activities which affect the environment, prior to the elaboration of the site permit documentation. Such urban planning constitutes in its contents the subsequent completion of the spatial planning conditions, therefore the Constitutional Court annulled the Ordinance in the challenged part.

According to ZUN, tolerances must be constituent parts of the Ordinance on the Spatial Operation Act, therefore the tolerances which are approved by the municipal technical service without these restrictions pursuant to the Ordinance, are inconsistent therewith. They constitute the amendments or completions of the Ordinance, thus the Ordinance is in this part inconsistent with ZUN and the Constitutional Court annulled it.

With the spatial planning conditions it is not possible to determine that prior to the elaboration of the site permit documentation also the consensus of the municipal technical service is required, which is issued subsequent to the review of the enclosed project of the concrete use of land, or the consensus issued to the enclosed project that requires tolerances regarding the change of the intended use of land, buildings and devices in the extent not provided by the Ordinance. Such urban planning, as represented in the discussed case by the Municipal Act to the building project, together with this project, means in its contents the amendment or the completion of the spatial planning conditions. The municipal technical service lacks jurisdiction to issue such an Act. Moreover, only the Municipal Council may adopt such an Act according to the prescribed procedure. Therefore, the challenged Act, which is a regulation in its contents, is nonexistent and may not be applied.
Password:
Temporary injunction, municipal act.
Municipality, spatial planning.
Municipality, consensus of municipal technical services.
Spatial planning, site permit documentation.
Urban spatial planning.
Spatial planning, spatial planning conditions.
Tolerance in spatial solutions.
Consensus to a building project.
Partly dissenting opinion of a Constitutional Court judge.
Concurring opinion of a Constitutional Court judge.
Legal basis:
Urban Planning and Other Forms of Land Use Act (ZUN), Arts. 26, 35, 37, 38, 40, 43
Constitutional Court Act (ZUstS), Arts. 40.1, 45.2, 45.3
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
municipal regulation
Applicant:
Alojz Prašnikar, Domžale and others
Date of application:
11.12.2001
Date of decision:
21.03.2002
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN02518