In the complete deconstruction of all his arguments uEnvironment Agency in favor of his bonuses building regulation a new decision of his is proceeding Council of State. As it turns out, it is not only unconstitutional but also opposite in the Community legislation to take measures that lead to an unrestrained strengthening of construction without prior study or assessment of the effects.
Furthermore, these measures not only do not fulfill their purpose – e.g. upgrading buildings, reducing coverage – but ultimately lead to a host of problems, such as increasing property values, worsening the housing problem, creating a wave of single-family home demolitions, and more. And they lead to the enrichment of the beneficiaries, at the expense of the public interest. The final decision, however, will be made by the Plenary to which the case is referred.
“K” presents today the text of the long-awaited decision 293/2024, with which the Municipality of Alimos and the Quality of Life Committee of the municipality appealed against a building permit (Eth Department, president of the composition Theodoros Aravanis, reporter Dimitris Pyrgakis). The license to which the appeal concerns used a combination of various height and building factor bonuses given by New Building Regulations (NOK) eventually leading to the construction of an 8-storey building with a height of 25.9 meters (against 17 m. valid in the area) and 969 sq.m. (versus 820 sq.m., based on the rate applicable in the area).
The decision systematically raises a series of issues related both to the way building permits are issued today, and to the way favorable urban planning regulations are constantly legislated in favor of private benefit, at the expense of the public interest. In its rationale, all the arguments of the Ministry of Environment are deconstructed one by one, while issues such as polynomial and the ongoing degradation of the concept of urban planning. More specifically:
Confusion of responsibilities
Examining whether it is permissible for the municipality to challenge a decision of a municipal body, the Council of State makes a realistic impression of how the system of issuing building permits has evolved in our country. As stated in the reasoning of the decision, in reality a building permit is not issued by the building service, “but automatically by the electronic system of TEE e-adeies on the initiative and “responsibility” of a private engineer or technical company, after the electronic submission of a file, without the intervention of the YMCA (…) The inadequacy of the control of legality exercised by the YMCA and the municipality is aggravated by the fact that even the central administration does not exercise a substantial control on the issued building permits (…). The lack of control is aggravated by the fact that the necessary administrative acts have not been issued for the organization and operation of basic control bodies, such as the YMOD and the “Built Environment Observatories”, the operation of which is necessary for the control of (including private ) of building inspectors. Therefore, the respective issues are regulated by transitional provisions or by problematic circulars of the involved ministries, resulting in confusion of responsibilities and legal ambiguity”.
In other words, the CoE “undresses” the current urban planning permit issuance system as hollow, dependent on private individuals who are never controlled. It is recalled that the creation of this system as well as the abolition of permit control had been presented by successive Ministers of the Environment and the Technical Chamber as pioneering, eliminating inconvenience and “bureaucracy”.
Getting into the essence of the case, the SC notes that as early as 2020 (decision 705/20, on the suspension of construction in the Makrygianni area) it has been decided that the calculation of the maximum height of buildings does not apply in areas where there are special decrees with specific building conditions , prior to the New Building Regulation (2012) and that these decrees were not repealed by either the current or the previous (GOK 1983) building regulation. “An opposite interpretation, in which the NOK determines the maximum height of the country’s buildings in relation to the building factor greater than that provided for by the urban planning regime of an area, is contrary to article 24 of the Constitution, which mandates the urban planning of settlements after a study of the local conditions and the physiognomy of each region with the participation of the relevant OTA and interested citizens. It does not allow the abolition, by general decree and without scientific study, of the special structuring conditions that had been established for each region”. It thus reminds us how far-fetched the argumentation of the Ministry of the Interior is, that the NOK does not prevail only when there are special decrees for traditional settlements, etc. and is stronger than the general urban plans that apply in each region.
Advancing this rationale, the decision notes that the respective legislator must, in order to change the urban planning status of an area, follow the required procedure (“study of the area, participation of the relevant OTAs and the public, strategic environmental impact study for the review of general urban planning plan”) “because it is not legitimate to use the legislative route to bypass the guarantees provided by the Constitution for proper urban planning”.
He considers it unconstitutional to take measures that lead to an unrestrained strengthening of construction without an assessment of the effects and ultimately create a multitude of problems.
Compensations
Regarding the bonus factor for reducing the coverage of a building on the plot, it states that “with these arrangements, which are direct and horizontal in nature and lack study, the overall building and residential density (inhabitants/surface unit) is increased and altered the character of settlements with special urban planning ordinances” and concludes that compensations cannot be given in favor of the individual and at the expense of the whole: “It is not constitutionally permissible to seek compensations against the deterioration of specific building conditions and restrictions, which is judged, according to the above, for each term independently. It is not understood, after all, to provide the private builder with compensations that entail a burden on the residents and in general on the other inhabitants of the settlement”. It states that the incentives provided must be proportionate “in the sense that they must not lead to the enrichment of the beneficiaries and be of a mild form (eg exemption from transfer taxes, ENFIA)”. Accordingly, in the provision of additional square meters in exchange for the energy upgrading of the buildings, he judges that “the increase in the rate is not permissible to have a compensatory nature, “compensating” the costs incurred by the owner/builder for the energy upgrading of the building, from which he benefits primarily himself”.
The decision further deconstructs the bonuses given by the NOC: for example, it states that reducing the coverage of a building has little effect when basements are allowed to extend outside the building’s outline and effectively “seal” the ground of a plot. And “green roofs” “may be allowed, but not pursued by providing free and unjustified compensations (such as an increase in the building factor, the addition of habitable space to the roof, swimming pools) that increase construction and deteriorate the residential environment at the expense of residents”. The State’s argument that the overall burden is small, due to the large number of buildings that take advantage of such arrangements (e.g. in Alimos already 42 buildings) is unfounded.
The decision also deems unconstitutional the exemption from the building factor of bay windows (bay windows), attics, 50% of the basement, etc. “The exemption in question clearly contradicts Article 24 of the Constitution because it is not understood that areas of primary use, i.e. intended for residence, are exempt from the rate, since by definition they increase building.”
It is also important that the decision highlights the serious consequences of NOK bonuses. In principle, it indicates that the increase in height and building factor is ultimately burdensome. “Increasing the height of buildings in itself causes adverse consequences for the neighborhoods and the residential environment due to the reduction of lighting, sun exposure and ventilation, the deprivation of views and the unsightly clustering of low and tall buildings, especially in areas where there is low construction or buildings from earlier times are being preserved, for which there is no legal framework for effective protection, as required by the Constitution”, it states.
Social consequences
The consequences are wider, as the increase in the buildable area increases the value of the land. “It should be expected that the increase in the value of land will make it more difficult for OTAs to acquire real estate for communal and public benefit purposes and will bring about an increase in apartment prices and rents, with adverse social consequences for large sections of the population, which it does not appear that they were studied. Furthermore, the benefits from the building exploitation of real estate due to the increased construction allowed by the NOK may lead to a wave of demolitions of individual buildings and complexes of significant value and their replacement by high-rise buildings”, the reasoning of the decision states.
Finally, the decision concludes that NOK’s bonuses are not only unconstitutional, but also contrary to Community legislation (Directive 2001/42 on environmental impact assessment), because their effects have not been assessed, nor has there been a substantial consultation on them. But due to the importance of the matter, it must be decided by the Plenary, to which the case is referred.
