Final Decision on the Dispute on the Legality of the Building Permits for the Construction of Hydroelectric Power Plants

In recent years, there has been a systematic practice of the heads of the RDNSK to refer to the Prosecutor's Office with reports of "illegal construction" regarding hydropower plants that do not have a construction right established by the Council of Ministers for construction in the riverbed. On the basis of these signals and their verifications, the Prosecutor's Office, in turn, protests construction permits for hydropower plants as invalid and seeks their annulment by the courts (both for hydropower plants under construction and those placed in service).

As a result of our work on a similar case, to protect the rights of a hydropower plant owner against a signal of the Regional Directorate for National Construction Control and a subsequent protest of the Prosecutor's Office, the Supreme Administrative Court ruled with Decision No. 2460 of 16 March 2022. The Court rejected the Prosecutor's protest against the invalidity of the Construction Permit for the Hydroelectric Power Plant. The decision is final and non-appealable.

The important legal conclusions reached in the course of our work in the cases have found full support from the judicial authority, and some of the most important of the reasons of the judgment, we quote as follows:

-"...the court referred to and interpreted the provision of Art. 46A, para. 1 of the Act on waters, according to which the submission of a permit under Art. 44 and 46 is a necessary condition for the approval of the project and for the issuance of a building permit under the Spatial Development Act. From which it follows that ....... has the status of a contracting authority within the meaning of Art. 161 para. 1, third sentence of the Spatial Development Act, namely a person who has the right to build on another's property by virtue of law".

-"...the pressure pipeline and the water intake are not linear objects of the technical infrastructure within the meaning of § 1a of the Supplementary Provisions of the Cadastre and Property Register Act in relation to Art. 64 of the Spatial Development Act, therefore the quoted provision of Art. 7, para. 5, item 3 of the State Property Act is inapplicable";

The decision and the reasons formed in it provide an answer to the different interpretations existing on the subject, concerning the scope of the rights which the person constructing a hydroelectric power plant should have in favour of the owners of these objects.