9 January 2024
In several successive judgments, the Federal Supreme Court has developed and consolidated a new jurisprudence which now classifies building permit decisions as interim decisions under certain circumstances, thus creating new procedural hurdles when certain aspects with a margin of appreciation are deferred to a subsequent procedure with conditions.
In principle, final judgments can be appealed to the Federal Supreme Court. These are decisions that conclude the proceedings (Art. 90 of the Federal Supreme Court Act, FSCA). Interlocutory judgments - i.e. judgments that do not conclude the proceedings - can only be appealed to the Federal Supreme Court in certain exceptional cases (Art. 93 para. 1 FSCA). This provision creates an effective barrier to access to the Federal Supreme Court, which is intended to limit its workload.
According to the practice in the Canton of Lucerne and other cantons, and protected by the cantonal appeal authorities, it was previously possible to remedy minor deficiencies in a building application by imposing conditions in the building permit decision. For example, it was often stipulated that the environmental plan, the colour scheme, the energy certificate and other ancillary or technical implementation details had to be submitted to the building authorities for approval prior to the start of construction. This undoubtedly had the great advantage that the constructor did not have to plan all the ancillary details down to the last detail when submitting the planning application. He could save the cost of doing so until he was sure that he would actually be able to carry out the proposed development. The building authority, for its part, could save itself the expense of having to check every minor detail when it granted planning permission. The objectors, however, did not lose anything, as the conditions only regulated minor points that hardly affected them anyway. Particularly in the case of technical documents such as the energy certificate or the securing of the excavation pit, it is the examination and confirmation by specialists that is important, not the objections of lay people.
In its previous jurisprudence, the Federal Supreme Court only examined such conditions for compliance with the principle of coordination. In the jurisprudence initiated with the decision 1C_203/2022 of 12 April 2023, the Federal Supreme Court now examines whether the granting of a building permit subject to conditions does not constitute a "building permit subject to conditions", which would have to be qualified as an interim decision. If this is the case, the Federal Supreme Court will not hear an appeal against it, as the restrictive requirements for the assessment of an interim decision by the Federal Supreme Court are generally not met. In assessing whether a building permit with conditions qualifies as an interim decision, the Federal Supreme Court is guided by whether or not the building permit authority has a margin of discretion in assessing the subordinate implementation point in question. If the former is the case, then, according to the Supreme Court, an interim decision has recently been issued.
The change in case law described here has far-reaching consequences for the realisation of construction projects. When submitting a building application, the constructor must now also conclusively address and present subordinate implementation issues. For their part, the building authorities are obliged to refrain as far as possible from the previously widespread and proven method of imposing conditions. This raises the difficult question for both the constructor and the building authority as to whether there is room for discretion in the case of a subordinate implementation point.
It may be that the Federal Supreme Court has found a tried and tested means of effectively limiting the number of cases it has to deal with in the area of planning permission. However, this does not solve the well-known and rightly lamented problem of excessively lengthy planning permission procedures.
Our building law experts will be happy to assist you with their expertise and provide you with detailed advice before and during the building permit procedure.
