URBAN PLANNING IMPASSE FOR OFF-PLAN DEVELOPMENT – THE DECISIONS OF THE COUNCIL OF STATE AND THE CURRENT SITUATION
Over the past two years, a “block” has been placed on off-plan plot development.
A. HOW THE “BLOCK” CAME ABOUT
Initially, Decision No. 176/2023 of the Plenary Session of the Council of State (hereinafter referred to as the Council of State) ruled that building on plot outside the urban plan requires, in addition to a minimum surface area, a frontage on a public space (road) that is legally existing, not one created by private initiative. This decision was followed by two further decisions, namely Decision No. 992/2023 of the Plenary Session of the CoS and Decision No. 1206/2023 of the Fifth Chamber of the CoS.
The stance expressed in these decisions does not introduce anything new. On the contrary, it reiterates the established position of the Council of State that having frontage on a public road is a prerequisite for building on off-plan areas, regardless of when the plots were created. This prerequisite is clearly set out in the legislation in force, namely:
1. According to Article 1 of 24/31.5.1985 PD entitled “ Amendment of building terms and restrictions for plots outside urban plans and beyond the boundaries of legally existing settlements before 1923” (Government Gazette D’ 270/1985)”.
“The building terms and restrictions for plots of land outside city street plans […] are amended as follows: 1.a) Minimum plot area 4,000 m2 b) For plots facing international, national, provincial, municipal, and community roads, as well as their abandoned sections and railway lines, the following are required:
– Minimum frontage 45 m
– Minimum depth 50 m.
– Minimum area 4,000 m2.
2. In accordance with Law 3212/2003, case (a) of paragraph 1 of the above article is amended as follows:
“1.a) Minimum plot area of 4,000 square meters and frontage on a public road of twenty-five (25) meters.”
Furthermore, Article 23, paragraph 3 of the same law stipulated that “case a) of paragraph 1 of Article 1 of the Presidential Decree of 24/31.5.1985, as replaced by paragraph 1 of Article 10 of this law, does not apply to plots existing at the time of entry into force of this law.”
This last provision was the basis for the issuance of building permits by the competent urban planning authorities for a long time, on the assumption that the existence of a frontage on a public road was not a prerequisite for the construction of plots existing prior to 2003.
However, as early as 2016, the Council of State ruled that the requirement of frontage on a public road also applies to plots of land that were formed before 2003[1].
Of particular value in the reasoning of the Council of State’s decisions in general is the admission that it is not sufficient for a property to face any “public” (in practice) road, but that the road must be recognized as public by presidential decree. This is because the Council of State considers that the issuance of an administrative act for the recognition of a road constitutes the exercise of urban planning powers, which are not of a specific nature and must therefore be carried out by presidential decree. Unfortunately, however, the State is particularly slow in this matter, as very few roads in off-planned areas of the country have already been designated as public roads by presidential decree. This severely limits the construction potential of land outside the plan and places the owners of such land in a state of continuing uncertainty.
B. HOW IS THE “BLOCKADE” BEING ADDRESSED?
Naturally, this issue has provoked significant reaction and gained considerable public attention. The State has undertaken action to address the problem by initiating the process for issuing a Presidential Decree that will ratify the country’s road network and recognize municipal roads—a process that should have been completed long ago. However, for this to happen, Local Urban Plans (LUPs) and Special Urban Plans (SUPs) must be completed by the end of 2025. Only then can the relevant Presidential Decrees be issued and submitted for approval to the CoS. Therefore, it is almost certain that the “block” on construction in off-plan areas will not be lifted—at least through this route—before spring 2026.
Aware of this delay and its negative consequences, the State attempted as early as January 2024 to pass a transitional provision allowing construction under certain conditions in off-plan plots before the national road network is formally ratified. However, this effort failed, as it clashed with the strict requirements imposed by the CoS. As a result, under current circumstances, the lifting of the “block” on construction in off-plan plots is expected no earlier than spring 2026. Until then, construction in such plots and all related legal actions remain suspended and subject to legal uncertainty.
[1] Council of State 847/2016»
Thomas K. Karachristos