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Ombudsman's action to protect public interest

18. 08. 2012

Ombudsman filed the first action to protect public interest against a building permit for a photovoltaic power plant, using his new powers based on an amendment to the Code of Administrative Justice.

In July this year, the ombudsman filed the first action to protect public interest, using his new powers based on an amendment to the Code of Administrative Justice. The action is directed against several final and conclusive administrative decisions of the Municipal Authority in Duchcov, thereby this administrative body had permitted the construction of a photovoltaic power plant in the cadastral area of Moldava in Krušné hory and subsequently issued an occupancy permit.

In a standard investigation Deputy-ombudsman found a number of shortcomings in the administrative procedure itself; the environmental impact of this industrial construction had not been assessed in advance (possible and probable impact on the landscape character, impact on the favourable condition of Ptačí oblast Východní Krušné hory, not granting an exception to protective conditions related to specially protected plant and animal species). Further, the Building Act was fundamentally breached since the construction had been permitted and carried out in the open landscape and in a non-developed area, i.e. in violation of one of the basic objectives of construction regulation, namely the protection of non-developed areas. 

Since ombudsman's duty always is to satisfy the court that there is compelling public interest in an action against a specific decision, his line of reasoning was as follows: During administrative proceedings, it was not just some legal rule that was breached; authorities had not respected a number of provisions of various sector regulations (the Building Act, the Nature and Landscape Protection Act, European regulations). In opinion of the ombudsman, unlawfulness of the issued decisions reaches such intensity that the principles of the rule of law and prevention are negated. What the ombudsman also sees as serious in this case is the continuing negative impact of the construction on environment and the non-developed area and, last but not least, the inability of the public administration to make remedy “internally”, i.e. by means of extraordinary remedial measures.

Since the public administration as a whole had been unable to provide for a remedy of these unlawful procedures, not being able to do so even within an administrative review of the contested decisions by the Regional Authority of the Ústí nad Labem Region and the Ministry for Regional Development, the ombudsman decided to use his new special powers and demand that the administrative court cancel the acts in question.

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