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Annulment by the Council of State of a SYPOTHA Decision

Decision of the Council of State (StE) annulling a decision of the SYPOTHA (Council for Urban Planning Objections and Disputes) on an appeal against a declaration of inclusion of unauthorised constructions in a settlement scheme.

StE 419/2021

Summary on the annulment of the SYPOTHA decision

– By the judgment now under appeal, the application for annulment lodged by the present appellants was rejected. Among other things, the ground of annulment was rejected by which it had been argued that the initial decision of the SYPOTHA, issued on an administrative appeal (ενδικοφανής προσφυγή), was not subject to a request for reconsideration but had to be challenged by an application for annulment. Consequently, the SYPOTHA acted unlawfully when it formally accepted the request for reconsideration filed by the present respondent and issued the contested decision. That ground was rejected primarily as based on a mistaken premise, on the reasoning that the above “objection” of the respondent–intervenor was examined by the SYPOTHA as a legality petition under Article 33 of Law 4030/2011 and not as an administrative appeal, in line with what was held in the Court’s referral judgment 1277/2019. The above ground of appeal is admissibly raised under the provisions of Article 12 of Law 3900/2010, given that there is no case-law of the Court resolving the issue of the admissibility of an administrative petition against a SYPOTHA decision issued on a petition lodged, pursuant to Article 25 para. 16 of Law 4178/2013, against the inclusion of an unauthorised construction in the provisions of that law. It must therefore also be examined on the merits. In the context of examining this ground, the principal question arises whether the declaration of inclusion of an unauthorised structure in the provisions of Chapter A of Law 4178/2013 constitutes an administrative act and, indeed, an enforceable one and, consequently, whether the rejection by SYPOTHA of an administrative petition against it lacks enforceability or not. These latter issues were resolved by judgment 2210/2020 of the Plenum of the Court, which held that the production of the consequences provided for in Law 4178/2013, triggered by the submission of the relevant application–declaration of inclusion in the law and the payment of the relevant fine and filing fee by the interested party, becomes admissible upon acceptance of the application by the Administration; and that acceptance, although not expressed in an express and solemn manner, must be deemed to intervene between, on the one hand, the application–declaration of inclusion and, on the other, the activation of the favourable regime of Law 4178/2013. Consequently, the acceptance of the declaration and of the relevant request contained therein, emanating from the Administration, is equivalent to an enforceable administrative act, subject to an application for annulment. Furthermore, according to the same judgment, if the petition provided for by law (Article 25 para. 16) is brought before the SYPOTHA against the application–declaration, and the special administrative procedure provided for its examination is followed (departmental recommendation by the relevant Building Directorate (Y.DOM.), etc.), the decision issued thereon, or the constituted failure to issue a decision, also has an enforceable character and is itself subject to an application for annulment.

The administrative petition against the declaration of inclusion of an unauthorised structure, that is, against its inferred acceptance by the Administration, constitutes, under the law, a special administrative legality petition, since it is brought before the administrative body provided for by those provisions (SYPOTHA), within the time-limit set by them, leads to the examination of the said administrative act solely from the perspective of its legality, and the seised administrative body may annul the inclusion of the unauthorised construction in whole or in part or reject the petition.

More specifically, the SYPOTHA, when seised of the special administrative petitions of Article 25 para. 16 of Law 4178/2013 against inclusions of unauthorised constructions in the provisions of Law 4178/2013, examines them only from the perspective of their conformity with the provisions of the law, in particular as regards the admissibility of inclusion under Article 2, the classification of the unauthorised construction under Article 9, and the lawfulness and sufficiency of the supporting documents submitted (Article 11). The two-month time-limit within which the SYPOTHA must rule begins from the receipt by it of the petition, the case file and the recommendation of the Building Directorate (Y.DOM.) and is mandatory, since under the express provision of the law, if no decision is issued by the SYPOTHA within the said two-month period, the petition is deemed to have been tacitly rejected (annulment of the SYPOTHA decision).

Consequently, a SYPOTHA decision on the petition issued after the expiry of the two-month time-limit is issued without temporal jurisdiction. The SYPOTHA cannot revisit the case, either of its own motion or upon a request for reconsideration, save only to revoke its decision on the ground of the defect of lack of temporal jurisdiction. This is the principal reason for the annulment of the SYPOTHA decision.

The above ground of appeal would have had to be upheld, since the SYPOTHA issued its decision of 31.5.2016 on the special administrative petition of the respondent after the lapse of almost six months from the receipt by it of the petition, the case file and the recommendation of the Building Directorate (Y.DOM.) (7.12.2015), that is, without temporal jurisdiction. Nor could it revisit the case, either of its own motion or on a request for reconsideration, save only to revoke its decision on the ground of the defect of lack of temporal jurisdiction. Consequently, the later decision of 16.11.2016, by which the decision of 31.5.2016 of the same body was partially revoked, following a request for reconsideration by the respondent, suffers from the same defect of lack of temporal jurisdiction. Nevertheless, the Court, in view of the complexity of the new provisions, which were moreover only recently interpreted by the Plenum as to the nature of the declarations of inclusion of unauthorised constructions, and as to the existence and enforceability of administrative acts arising from those declarations, holds that it will not apply the said provisions in the above sense in the present case, specifically as regards the issue of the temporal jurisdiction of SYPOTHA when seised of special administrative petitions against declarations of inclusion. Their application in that sense will take place in cases in which the legal remedies are filed after the publication of the present judgment. In view of the foregoing, the above ground of appeal, as raised, must be rejected as unfounded, since the appellate court rightly held that the SYPOTHA of the Cyclades decision of 31.5.2016 was issued on a special administrative petition, and that the SYPOTHA could revisit the case by carrying out a fresh review of legality.

The SYPOTHA, when seised of the special administrative petitions of Article 25 para. 16 of Law 4178/2013 against inclusions of unauthorised constructions in the provisions of Law 4178/2013, examines them, as already set out, solely from the perspective of legality and only as to whether the conditions set by the law for inclusion are met, in particular as regards the admissibility of inclusion, the classification of the unauthorised construction and the supporting documents submitted. As a result, the decision on the petition is issued on the basis of purely objective data and is unconnected to any subjective conduct of any person related to the specific inclusion. In the present case, the SYPOTHA, when seised of the request for reconsideration of the respondent, confined itself to applying to the land what had been finally and irrevocably held by a civil court as to the boundaries of the plots of the respondent and the appellants, an issue which concerns the accuracy of the supporting documents submitted as to the capacity of the owner and the topographical diagram. Moreover, since the procedure for the annulled inclusion had been initiated upon application by the appellants and the SYPOTHA decisions were issued in the exercise of a review of legality of that inclusion on petitions of a third interested party, observance of the formal requirement of the prior hearing of the appellants was not required before the issuance of those decisions. The result is the annulment of the SYPOTHA decision.

FREQUENTLY ASKED QUESTIONS ON ANNULMENT BY THE COUNCIL OF STATE OF A SYPOTHA DECISION

1. When can I challenge a SYPOTHA decision before the Council of State?

The SYPOTHA decision on a special administrative petition constitutes an enforceable administrative act and is subject to an application for annulment before the Administrative Court of Appeals, with the possibility of appeal to the Council of State (StE) or a direct application for annulment before the StE depending on the subject matter. The time-limit is, as a rule, 60 days from service or full knowledge of the contested decision. Judgment StE 2210/2020 of the Plenum clarified that both the acceptance by the Administration of the declaration of inclusion of an unauthorised construction and the SYPOTHA decision on a third party’s petition have an enforceable character and are subject to annulment proceedings. The procedure requires strict observance of the time-limits; otherwise, the challenge is dismissed as inadmissible.

2. What grounds lead to annulment of a SYPOTHA decision by the Council of State?

The most common grounds of annulment concern lack of jurisdiction of the body, breach of an essential procedural requirement, erroneous application or interpretation of the provisions of Law 4178/2013 or the currently applicable Law 4495/2017, insufficient or contradictory reasoning, and exceeding the limits of the review of legality. In particular, in judgment StE 419/2021, it was recognised that SYPOTHA reviews purely the legality of the inclusion, that is, admissibility under Article 2, classification of the unauthorised construction, and sufficiency of supporting documents, without entering into subjective elements. If SYPOTHA exceeds these limits or examines matters extraneous to the review of legality, its decision is liable to annulment.

3. What does lack of temporal jurisdiction of SYPOTHA mean and how does it benefit the owner?

Judgment StE 419/2021, interpreting Article 25 para. 16 of Law 4178/2013, held that SYPOTHA must rule on the petition within the time-limit set by law, running from receipt of the case file and the recommendation of the Building Directorate (Y.DOM.). A decision issued after the expiry of that time-limit suffers from lack of temporal jurisdiction and is annulled. The body may only revoke the subsequent decision on the basis of that same defect, and not revisit the case with a fresh review. In practice, an owner who has lawfully included his property uses temporal lack of jurisdiction as an autonomous and powerful ground for annulling an adverse SYPOTHA decision that has annulled his inclusion.

4. How long does the annulment procedure before the Council of State take?

The annulment procedure before the Council of State generally lasts between two and four years, depending on the workload of the relevant Section and the complexity of the case. The application for annulment is filed within 60 days, followed by the setting of a hearing date, the filing of memoranda, the recommendation of a Council of State Councillor, and a public hearing. In parallel, an application for suspension of enforcement may be filed in order to prevent irreversible situations until the final judgment is issued, e.g. demolition or collection of fines. The application for suspension is examined more swiftly and constitutes a critical tool for the owner’s protection while the annulment proceedings are pending.

5. What documents and evidence are required to challenge a SYPOTHA decision?

The following are necessary: the full SYPOTHA decision with proof of service, the file of the inclusion under the corresponding settlement law (4178/2013, 4495/2017 or any newer one), the recommendation of the competent Building Directorate, a topographical diagram, title deeds, architectural drawings, engineer’s declarations, proof of payment of the filing fee and fine, as well as any prior court decisions concerning the boundaries or ownership of the property. The evidence demonstrating the date of receipt of the file by SYPOTHA is also important, in order to calculate the critical time-limits and to establish a possible ground of lack of temporal jurisdiction.

6. What is the role of the lawyer in a case for the annulment of a SYPOTHA decision before the Council of State?

The lawyer assesses the legal and technical merits of the challenge, cooperates with the engineer to substantiate the inclusion, drafts the application for annulment or appeal with specific grounds, files an application for suspension where there is a risk of irreparable harm, and represents the client at the hearing. He follows the case-law of the Plenum and Sections of the Council of State, particularly after judgments 2210/2020 and 419/2021, which radically changed the characterisation of declarations of inclusion. In urban planning disputes, specialisation is critical, since the correct formulation of the grounds of annulment and the identification of formal defects of the decision often determine the outcome without the need for an examination on the merits.


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