Construction law? Everything is (a bit) different.

After a series of amendments to the Building Act in recent years, which were supposed to speed up the construction process but actually changed nothing, the new building act approved two years ago (and amended for the second time this year) introduced some systematic innovations that were supposed to finally bring improvement. First, there was the integration of the construction process, which was intended to incorporate the existing preliminary measures regarding the opinions of the so-called relevant authorities into the construction process itself; furthermore, the digitization and electronization of administrative processes, and finally, a completely new system of building authorities independent of local self-government, which was supposed to relieve the construction process of so-called systemic bias, although this year's amendment has already abolished this novelty again.

All these systemic attempts, however, are a futile effort at an elegant and relatively easy treatment of a patient who is actually suffering far more than it appears at first glance. These formal measures are essentially organizational in nature and do not address the essence of the current problems, and therefore cannot in themselves resolve and unblock the dysfunctional system. The real causes of today's unfortunate state are twofold: poorly set technical conditions for constructions (and an unsuitable mechanism for monitoring their compliance) and a poorly set system of spatial planning.


The state-defined technical conditions that constructions must meet to be permitted do not form a coherent, clear, and understandable system. Apart from the Building Act, which should logically establish these conditions (but almost does not at all), they are, in fact, scattered across dozens of different subordinate and departmental regulations, in irregularly delegated technical standards, and even in non-public methodological guidelines from authorities.

In particular, the so-called delegation of technical standards or parts of them ranks among the greatest and most harmful absurdities of Czech building law. Technical standards are not binding in Europe and primarily serve as contractual standards. Therefore, they are inherently a description of the optimal solution, not a definition of the furthest boundary of legal solutions. Their deletion from binding status, which is also in conflict with EU law (and therefore done covertly, without explicit references, making it even more confusing), leads to a complete substantive nonsense, where the general optimum is presented as the only legal option, and as a result, many other substantively correct solutions are effectively prohibited.

Not only do the conditions set in this way not form a coherent system (due to the complete unsystematic nature of their establishment by various departments and authorities), but many of them are not even substantively correctly set because they have not undergone the necessary expert and political opposition and have been issued based on administrative and not legislative acts. Clarity, understandability, and substantive correctness, which would allow the standard application of these conditions during the conceptual and project preparation of constructions (and would facilitate much easier monitoring during the construction process), are then replaced by countless partial 'departmental' proceedings that must precede the actual construction process (or are newly to be integrated within it), during which a specialized authority (the so-called relevant authority of state administration) assesses the compliance of the project with its department and issues a 'binding opinion'.

Unclear, unsystematic, and partly substantively incorrect conditions for building create, together with this system of partial permitting procedures and the opinions issued within them, an impenetrable bureaucratic thicket that is both a cause of poor permeability of the entire permitting process and simultaneously a cause of reduced quality of constructions and the entire built environment because poorly set conditions[2] unjustifiably deform construction plans.

It is similarly absurd as if, for example, road traffic rules were scattered across various regulations (e.g., about the police, municipal police, municipalities, communications, transport means, etc.) and various technical standards (unclearly unbinded) and every now and then some of them were changed, and drivers would have to constantly search for them and before driving, prepare the appropriate documentation (travel plan) including solutions to traffic situations, potential accidents, emissions, and parking the vehicle along the way, and they would have to present it to the relevant authorities (traffic police, relevant municipal police, firefighters, hygienists, road administrators, road workers, and others), and only when they had issued positive binding opinions from all, would they be able to apply for permission to embark on their journey.

However, that is exactly how it works in Czech building law. As mentioned, technical conditions for building are scattered across dozens of regulations and in many unclearly unbound technical standards or their parts, often they are incorrectly set substantively and frequently not formulated clearly, understandably, and transparently, which consequently leads to countless preliminary proceedings preceding (or newly participating in) the actual construction process, during which the so-called relevant authorities of state administration (but also other institutions) entrusted with individual partial agendas apply (and often extensively interpret) unclear regulations, assess the already processed project of the intended construction and bindingly determine how it needs to be changed, revised, and completed to even enter as a basis into the actual construction process, or further proceed with it.

This dysfunctional system has been developing for decades and was established by the communist reform of building law from the turn of the 40s and 50s of the last century, which removed the definition of technical conditions for constructions from the law to subordinate regulations, thus freeing the hands of communist authorities, who obviously know best what is right, without needing to be bound by legal rules. All subsequent amendments and recodifications have de facto occurred and continue to occur on this completely faulty foundation. Therefore, the real solution cannot be further partial adjustments and corrections of this system, but rather a fundamental reform guided in the spirit of Western European legislative models for building administration and historically continuing from the Czech building law valid (or being prepared and unfinished) during the First Republic.

This fundamental reform of the system of technical conditions that the state establishes as a prerequisite for permitting constructions means that these conditions must henceforth form a complete logical whole, must be internally consistent, well understandable, and relatively easy to apply. For this reason, it is necessary that they are contained in a single regulation. This regulation is, logically, the Building Act, whose only real purpose is precisely the specification of these mandatory technical characteristics of constructions. All permitting procedures only make sense in relation to these technical conditions; if these mandatory technical conditions did not exist, these procedures would also not be necessary. A functional Building Act must therefore have a comprehensive technical section that concentrates all state-defined technical conditions that constructions must meet. It is precisely here that all justified technical conditions from all existing related regulations, including departmental regulations, as well as unbinding technical standards, must be systematically transferred after careful review, selection, and correction. They must be formulated not only legally but also technically correctly, understandably, and user-friendly. (All other conditions for buildings must be removed from the legal order and the competence for their independent issuance must be withdrawn.) Based on such well, correctly, and understandably defined conditions, it will be possible to design constructions without the need for partial assessments by individual 'relevant authorities', whose system and especially competence can be reduced so that they do not hinder but serve. This would be as expert workplaces providing special consultations and as subcontractors checking compliance with the legal conditions by the construction project when requested by the building authority.

In other words: if the state wants to establish any binding conditions for building for good reasons, it must formulate them clearly, understandably, substantively correctly, and of course in advance, so that the builder, or their qualified and authorized designer, can based on these conditions prepare a project capable of becoming the basis for the construction process (that is, without prior or integrated assessment by the so-called relevant authorities of state administration). These conditions must be set by the Building Act if they are general conditions, or by the spatial plan if they are local conditions arising as spatial reflections of general conditions. Thus, it must always be such a legislative instrument that is subject to democratic opposition during its approval. In addition, municipalities must have the right to set local conditions within the limits given by the Building Act, either through a municipal building regulation in case of general local conditions or through a spatial or regulatory plan of the municipality in case of local conditions pertaining to specific places. All these conditions must, however, be fundamentally limited to those that are an indisputable subject of legitimate public interest. (It cannot be established as a necessary condition, for instance, the requirement for pre-negotiated connection of the intended construction to the existing energy or data network or to the public water supply; it is the responsibility of the builder to ensure these functions, especially considering that new technologies offer a range of different, including autonomous options.)

The entire system must therefore be based on clearly defined conditions in advance and a more or less routine check of their compliance in the construction process and not on the de facto retrospective establishment of conditions in binding opinions. Only two exceptions to this rule are permissible, in areas where nothing can be established in advance and where the correct solution must arise from a dialog concluded with a positive opinion. One is the area of handling protected monuments, where despite the necessary effort to generalize rules for managing monuments, individual dialog with the relevant expert preservation office over the specific project is necessary, as each monument is specific. The other is the sphere of integrating the proposed construction into its wider environment, where dialogue is needed with the expert architectural and urban planner who oversees the area, that is, with the city architect or regulatory or building commission acting on behalf of the municipality. Even in these two areas (application of heritage care and coordination of the proposed construction with the broader environment), however, it is necessary to improve the framework of generally established rules so that the basic principles of handling protected monuments are clearly formulated according to categories of protection and local rules for building in the context of the given municipality are, if possible, established in advance; for this, municipalities must be entrusted with the competence to issue local building regulations.

The only existing regulation that relatively well fulfills its function in the area of technical building legislation is the Prague Building Regulations, which were created on the basis of historical authorization from the Building Act for the capital city to issue its own building regulations and which substantively correctly, understandably, and unambiguously sets the conditions for local construction. The Prague Building Regulations are de facto an example and so far a solitary seed of functional building legislation in the country. It is, however, significant that they are constantly criticized by the Ministry of Regional Development, which has sought to abolish them or take away the competence of the city of Prague to issue them.


The second area that fundamentally hinders and distorts the process of effective construction preparation is the current form of spatial planning. Although the basic level of spatial planning is entrusted to municipalities, the process of preparing spatial plans and their changes is de facto subordinate to state administration. As a result, municipalities have their hands tied and cannot act as needed for their development. However, the responsibility for the outcome remains with them.

Preparing a spatial plan and its changes must now be mandatory entrusted to an institutional planner, or the municipalities must hire a person with so-called special expertise and must even have its selection approved by the regional office. In preparing the spatial plan, municipalities must (similar to builders during construction preparation) comply with countless problematically set rules, which in some cases unnecessarily distort the planned urban structure of the municipality. In spatial planning, the absence of clear and substantively correct rules is compensated by countless opinions that the municipality must obtain from institutions authorized to manage individual departmental agendas. Everything is then paternalistically concluded with the opinion of the so-called superior authority, without which the municipality cannot approve its spatial plan.

Given that the development of an area is in fact a continuous process, it is essential for spatial plans to be able to flexibly respond to changes in the overall situation of the municipality and changes in the plans of individual users of the area. However, until now, the change of a spatial plan has been regarded as more or less an anomalous issue, and this is how its course and length have been set, resulting in entirely disproportionate delays in making changes in the area, and thus the preparation of buildings in this area is further prolonged.

Therefore, it is necessary to fundamentally change this area of building legislation as well, grant municipalities appropriate rights in spatial planning, and clearly, unambiguously, systematically, understandably, and in advance(!) establish the substantive conditions they must fulfill in the Building Act or in the higher-level regional or nationwide spatial planning documentation. Well-functioning spatial planning is the second necessary condition for increasing the efficiency of building preparation, substantively correct determination of their mandatory properties, and real acceleration of their permitting.


From all of the above, it follows that without a fundamental reform of building law, it is not possible to significantly remedy the completely unsatisfactory manner of preparing and permitting constructions. Further and further adjustments to the existing legislative model cannot eliminate its fundamental flaws, which are an unfortunate legacy of communist rule. Without a structural reform of all technical conditions for constructions and without changing the system of spatial planning, it is not possible to significantly accelerate, increase efficiency, and substantively correct the permitting procedure for constructions.

All claims made by politicians who notoriously do not understand the area of building law and are therefore at the mercy of the bureaucratic lobby about speeding up building processes due to ongoing amendments and moving the Czech Building Act to a European level are nonsensical. It makes no difference whether the overcrowded authorities for state administration active in the construction process reside in twenty different buildings or in one, especially since the emerging electronic sharing of all construction documentation is not dependent on the physical proximity of individual officials. It also does not matter whether construction authorities remain at municipalities or are completely separated into their vertical structure. What is essential is whether the system of scattered, internally inconsistent, and often substantively incorrect determination of technical conditions for constructions will be preserved, or whether a coherent new regulation will emerge, summarizing the technical conditions into a single functional and working whole. Likewise, it is vital whether municipalities will remain vassals of state administration with their hands tied[3], but with full responsibility for the outcome of spatial planning processes, or whether their status will henceforth be self-governing and with sufficient freedom for flexible execution of the spatial planning agenda (including reasonable influence on the superior layer of spatial planning[4]) and for defending the legitimate interests of the municipality in the construction process[5].

It is thus entirely necessary to draft a new Building Act consisting of two fundamental parts – one reasonably extensive and detailed technical part, which will substantively correctly, internally consistently, and user-friendly establish all justified technical conditions valid for designing constructions and organizing space, and the other procedural part, which will soberly and understandably establish rational procedures for permitting constructions and for spatial planning.

This new Building Act must be a so-called code legal regulation; that is, a complex regulation that addresses all important rights and necessary obligations across the entire spectrum of spatial planning and preparation and permitting of constructions in the needed coherence.

In preparing it, of course, it is necessary to correctly resolve also a number of partial topics, such as: a) a reasonable (therefore not hypertrophied) scope of project documentation for construction proceedings, b) simplification of the systems of technical and accompanying reports (intelligent forms instead of litany), c) transformation of building inspectors (who were absurdly conceived in the past as institutionalized bypassers of proper construction processes) into certified experts usable both by building authorities and builders, d) elimination of duplication between spatial and building procedures, or the permitting of the so-called concept and the construction itself, e) reasonable public participation in construction processes (which would reflect the legitimate interests of residents while simultaneously limiting the participation of opportunistic entities abusing construction processes to extort its participants), f) reasonable timeframes (in weeks and not in months or years) and g) the location of construction authorities within the system of public administration. All this, however, are relatively easily resolvable technicalities compared to the necessary fundamental changes in Czech building law.

Without a radical reform of building law, which would return this important civilizational sphere from a seventy-year detour to a normal European position, it is not possible to significantly improve and accelerate either the permitting processes for constructions or to increase the effectiveness of spatial planning. If this reform does not occur, no matter how labor-intensive and demanding it may be, Czech society will pay for it with further unnecessary costs in ineffective procedures, unnecessary losses arising from delays in the preparation of constructions, disproportionate property prices, and unnecessary reductions in the quality of the built environment caused by substantively incorrect technical conditions for the preparation of constructions and for organizing space. Moreover, it is entirely indisputable that the total of these unnecessary costs and losses will far exceed the costs that would be necessary for the preparation and implementation of the reform of building law.

(The author is an authorized architect, co-founder, and former vice-chairman of the Czech Chamber of Architects and a former chairman of its legislative working group.)

---

Notes:

1. The effectiveness of the latest version of the Building Act begins on July 1, 2023
2. Typical representatives of substantively incorrect technical conditions include, for example, binding claims for sunlight on buildings, which by their consequences make meaningful urban structures impossible in the municipality, or general requirements for ensuring parking in the building (on the plot), which lead secondarily to increased traffic burden in the municipality and to necessary spatial and cost complications, as well as binding dimensional parameters for staircases in family houses, which impose a spatial excess standard on the builder regardless of their will, which in terms of real operation is not always necessary but means increased costs and spatial consequences. (The solution in many cases would be to introduce not only a standard but also a substandard and an overstandard.)
3. The paradox of the current spatial planning incapacity of municipalities is that in the area of management, municipalities can become indebted without comparable guardianship from state administration, even bringing themselves to bankruptcy.
4. The existing spatial planning hierarchy is one-way from the top down. Municipalities, but ultimately also regions, should have the right to propose changes to superior spatial planning documentation, of course in such a regime that would not paralyze the entire system.
5. A municipality must have a sufficiently strong position as a participant in the construction process so that it can advocate its policy of territorial care in all individual cases.