Case study : Finnish case

The case: “Standing by deviation?”

The municipal building permit board has issued a building permit for a farmer for the construction of a small building for office uses. The building is to be located on an area/zone that is reserved for a specified use in the master plan in force in this region. This zone / land reservation is delimited on the plan map by borders and the zone is further specified by a colour and a zone code. The written plan regulations annexed to the plan show what kind of land uses are allowed in each kind of zone. In this case the zone is reserved for, let’s say, recreational use, zone code “R”. The plan regulation states “Allowed building projects: Cabins, grill shelters and other buildings related to recreational uses”

An NGO brings an appeal against the permit arguing i.a. that the permit allows for the building of a facility that doesn’t fit into the landscape and that the building project is contrary to the the plan. The NGO states that it has standing because it is a member of the municipality (the NGO is registered as being resident in the municipality where the building project is located). Earlier on, the NGO has brought an appeal against the decision by the municipality to approve the master plan in question, but as that appeal did not succeed the plan is now in force. The NGO doesn’t own any property in the vicinity of the building project. The plan map and regulations are not adjoined to the appeal letter.

Questions:

• The main question: Is the appellant awarded standing in this case, and on what grounds?
• What is the outcome of the case if the NGO gets standing?
• What does the appellant have to refer to / invoke in order to make use of his full rights? Reversedly, how thorough an investigation does the court have to conduct in order to find out whether the appellant has standing or not?
• How does the court conduct the proceedings when the appeal has arrived in order to decide on the issue of standing?

Background: The system of deviation

The system of deviation is fairly important in Finnish building law. If a norm in the Land Use and Building Act (LUBA) or e.g. in a land use plan in force in the region where the building site is located would impose a building restriction on a building project of a certain type, the competent authority - that doesn’t have to be the actual building permit authority - could still grant the prospective builder a so called deviation, that would make this building project possible despite of the building restriction. Where a deviation is needed, the permit procedure for a specific building project is basically two-step: First you apply for the deviation, then for the building permit. Consequently, someone that opposes forthcoming building projects, could appeal at different stages of the land use decision procedure: first against the plan, then against the deviation decision and finally against the actual building permit.

Deviations can be granted from various kinds of norms in LUBA, a land use plan or a e.g. a municipal builiding ordinance. A typical case is the deviation from the building restriction under Section 72 of LUBA, that concerns the need of planning in shore areas: If there is no land use plan (of the right kind) in force on a shore area, you are not allowed to build there - unless you are granted a deviation. Deviations could also concern e.g. provisions on the size or location of building. Provisions of this latter, more specific kind are typically found in the local detailed plan or a municipal builiding ordinance, and the need of deviation is fairly straight forward in these cases. Deviations from local master plans, on the other hand, are a bit more intricate, partly due to the fact that certain preconditions have to be met in order for a provision of the local master plan to be binding in such a way that a deviation is in fact needed from that provision. I won’t elaborate this, nor the grounds on which a deviation can be granted. The bottom line is basically that you might be in need of a deviation from e.g. a plan, if you want to build something.

Questions and answers

* Is the appellant awarded standing in this case, and on what grounds?

Here the NGO could be granted standing because of the possibility that a deviation from the rules in the master plan is needed for the building project in question.

The NGO wouldn’t get standing by virtue of the rules on right of appeal against building permit decisions in 192(1) LUBA, foremostly since it does not own any nearby property. Usually this kind of specific connection to the building project is required for standing under 192(1) LUBA.
It doesn’t get standing by 191(1-2) LUBA / LGA 92(1) either, as this is not a case of appeal against a decision to approve a land use plan. In plan appeals standing is awarded based on a looser, regional connection, rather than on the basis that some specific legal interest of the appellant is affected by the decision.
The authority issuing the building permit should check whether this or that deviation is needed before a building permit can be issued, but the mere fact that the permit has been issued doesn’t eliminate the possibility that a deviation was needed after all. So, if there is a reasonable possibility that a deviation was in fact needed before the building permit could be issued, then the court has to apply also the rules of standing concerning deviation appeals in an appeal against a building permit, and not only those concerning right of appeal against building pennits. This way the scope of standing is broadened in this kind of building permit appeals. This goes especially for NGO:s, as 192(1)1.-4. LUBA doesn’t mention NGO:s (also the standing of private land owners is considered to be slightly broader in deviation appeals than in building permit appeals: Section 193(1)3 adds to the rights under Section 192(1)1.-3.)
Granted that the provisions of the plan in this case are legally binding, the court would then have to deliberate whether “office” uses conform with “recreational uses” and the building types allowed for in the plan regulation. Eventhough this is a fictional case, the court has fairly often to interpret whether a certain kind of land use is contrary to a plan or not.
Thus, according to case law, the NGO would get standing, if the court would find that constructing an office building is not a use that is allowed for in the plan. According to some commentators, however, this is debatable. It is a main principle that you can challenge by appeal only that what actually has been decided on. Thus, if an authority didn’t decide on something, here deviation, one shouldn’t be allowed to base his appeal on that something, or rather the lack thereof. One reason for the case law that anyhow allows here for this “standing by deviation” could be that the permit system in Finnish building law is somewhat fragmented.

* What is the outcome of the case if the NGO gets standing?

Here’s another catch: if standing is granted here, then the building permit is automatically quashed, since the preceeding condition for the permit, the deviation, hadn’t even been handled by the competent authority. And, vice versa, if there is no need for deviation, then there’s no standing and the court would not handle the appeal / declare it inadmissible.

* What does the appellant have to refer to / invoke in order to make use of his full rights? Reversedly, how thorough an investigation does the court have to conduct in order to find out whether the appellant has standing or not?

It should perhaps be enough that the appellant makes allegations that specify which deviation could be needed, even though the appellant wouldn’t specifically argue that he has standing because of the need of deviation. This is, however, fairly open to interpretation. At least it would be a bit absurd if in every appeal case the court would have to investigate ex officio every single possibility of deviation, as there are so many possible norms that you might have to deviate from in a single building project.

* How does the court conduct the proceedings when the appeal has arrived in order to decide on the issue of standing?

Typically the court would cut off the appeal procedure in an early stage, if it is clear that the appellant doesn’t have standing. But if the initial threshold is passed, i.e. it seems that a deviation could be needed, then the normal hearing procedure would probably be carried through by the court, perhaps with the court making some specified requests of information in order to obtain documents showing whether a deviation is needed. In a typical hearing procedure in an appeal case the court asks the permit authority, the permit applyer and finally the appellant for written statements.
How thorough an investigation is needed depends on the specifics of the case. Sometimes standing could be excluded by mere referral to the land reservation code, sometimes one would have to investigate the plan as a whole, the application documents for the permit and so forth. One could perhaps speak of “initial standing” in a case where the hearing procedure is carried through but where standing is denied in a later stage of the procedure, when it has been clarified that the appellant doesn’t have standing after all.

Relevant norms

I) Land Use and Building Act (LUBA)
http://www.finlex.fi/en/
http://www.finlex.fi/en/laki/kaannokset/1999/en19990132.pdf
....

Section 72
Need for planning in shore areas

Buildings may not be constructed in shore zones in the shore area of the sea or of a body of water without a
local detailed plan or a legally binding local master plan which contains special provisions concerning use
of the local master plan or a part thereof as the basis for granting a building permit.

Section 117
Requirements concerning construction

A building must fit into the built environment and landscape, and must fulfil the requirements of beauty and
proportion.
....

Section 191

Right of appeal against decisions to approve a land use plan or a building ordinance

In addition to what is laid down on the right of appeal in section 92 of the Local Government Act, regional
environment centres and other authorities, in questions within their sphere of administration, have the right
to appeal decisions by which a plan or a building ordinance is approved. Regional councils and local
authorities whose area the land use indicated in the plan or the building ordinance affects are also entitled
to appeal.

In addition to what is separately provided on appeal, registered local and regional organizations are entitled,
when the matter concerns their sphere of activity, to appeal decisions concerning the approval of a plan or
building ordinance within the area in which they operate. Nationally active organizations are also entitled to
appeal decisions to approve regional plans if they contravene national land use objectives.
....

Section 192

Right of appeal against building and action permit, landscape-work permit and demolition permit decisions

The following have the right to appeal building and action permit decisions:
1) owners and titleholders of adjacent and opposite areas;
2) owners and titleholders of properties the construction or other use of which may be materially affected
by the decision;
3) those on whose rights, duties or interests the decision has an immediate impact; and
4) local authorities.
....

Section 193
Right of appeal against deviation decisions and decisions concerning the need for planning

The following have the right to appeal deviation decisions and decisions referred to in section 137 made by
a local authority official regarding the need for planning:
1) owners and titleholders of adjacent and opposite areas;
2) owners and titleholders of properties the construction or other use of which may be materially affected
by the decision;
3) those on whose living, working and other circumstances the project may have a significant impact;
4) those on whose rights, duties or interests the decision has an immediate impact;
5) the local authority or the neighbouring local authority whose land use planning the decision affects;
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6) such registered associations the purpose of which is to promote environmental or nature conservation
or the preservation of cultural values or to otherwise influence the quality of the living environment, in
their area of activity;
7) the regional environment centre; and
8) other authorities in matters within their sphere of activity.
....

The Local Government Act (LGA)
http://www.kunnat.net/k_perussivu.asp?path=1;161;279;280;60393;60420
....

Section 92

Right to demand rectification and appeal
Demands for rectification and appeals of local authority decisions may be submitted by the party affected by a decision or whose rights, duties or entitlements a decision directly concerns (interested party), or by a member of a local authority.[ * ]
[ * i.e. members/inhabitants of the municipality ].