The Court confirms the unnecessity of an established right to build in the riverbed during the construction and operation of hydroelectric power plants

In March 2022, we informed you about the Supreme Administrative Court's Decision No. 2460 of 16 March 2022, by which the court declared legal and valid a building permit for a hydroelectric power plant, issued without an established right to build in the riverbed, which was previously challenged by the Prosecutor's Office. In May 2022, another chamber of the Supreme Administrative Court issued a second decision in the same direction - Decision No. 4238 of 04 May 2022.

As a result of our work on a similar case, on 18 May 2022 the Administrative Court of Plovdiv issued Decision No. 906, by which it also dismissed as unfounded the protest of the District Prosecutor's Office of Plovdiv against a building permit of another owner of a hydroelectric power plant in operation.

The first instance decision was not appealed by the prosecution within the statutory period. On 03 June 2022 the decision of the Administrative Court of Plovdiv entered into legal force. Although the decision was not ruled by the cassation instance (the Supreme Administrative Court), as long as it was not challenged by the Prosecutor's Office, the decision of the Administrative Court of Plovdiv acquired legal stability, which made it final in the dispute, expanding the case law in favor of the owners of hydroelectric power plants.

In Decision No. 906 of 18 May 2022, the court formed a legal conclusion that the absence of an established building right in the riverbed does not lead to a violation of Art.182, para.1 of the Spatial Development Act, which was the basis of the arguments of the prosecution against the owners of hydroelectric power plants. According to the administrative court, the above provision is inapplicable to such cases, since the hydroelectric power plants are a special type of facilities, whose regulation is subject to the provisions of the Act on waters. The court ruled that since the Act on waters is a special law in relation to the Spatial Development Act, the controlling provision in such cases is Art. 46a of the Act on waters, which requires the existence of the special permits under Art. 44 and Art. 46 of the Act on waters as a condition for the issuance of a lawful building permit for a hydroelectric power plant, not an established right to build in the riverbed. Because of the above, the judge concludes that the owner of the hydroelectric power plant is a contracting entity for the meaning of a special law - Art. 1, third sentence of the Spatial Development Act.

The stabilizing case law in favour of hydroelectric power plants increasingly puts on the agenda the need for the controversial issue to be finally regulated at legislative level. It is time for the state to pay attention to the problem, as according to the emerging case law in recent months, such disputes end without success for the Prosecutor's Office, and this could lead to subsequent liability of the state for the damage caused to investors due to legal gaps and ambiguities in the current legal framework.