Protection of Architectural and Urban Values in Building Law

Protection of Architectural and Urban Values in Building Law

Czech Republic
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There are few people who have not experienced a situation where a builder implements a project that complies with the spatial planning documentation, but is highly incongruous with the prevailing character of the area in which the structure is to be built. Specifically, construction of buildings in the 1990s and early 21st century, which belong to the pseudo-style called “entrepreneurial baroque”, is evidence of grossly insensitive location of buildings, ignoring the character and nature of the existing neighbourhood. Nonetheless, the trend in Czech building legislation over the last decade and a half has been an increasing emphasis on the aesthetic features of new developments and their integration into the urban and architectural environment, whereas individual interests of the builder and his oftentimes wild ideas about the appearance of the structure tend to be sidelined. The key here is the concept of “urban and architectural values in the area”.

The focus on the protection of the urban and architectural character of the development is demonstrated in Title I of Act No. 183/2006 Coll., on Spatial Planning and Building Code (“Building Act” or “BA”). According to Section 18(4), one of the objectives of spatial planning is the protection and development of the “natural, cultural and civilization values of the area, including the urban, architectural and archaeological heritage.” Section 19 of the BA describing the tasks of spatial planning refers to these values in two places: 

  • in paragraph 1(a), according to which the task of spatial planning is to identify and assess its natural, cultural and civilization values; and
  • in paragraph 1(b), which provides that the area development shall be conducted with respect to the values and conditions of that area.

At first glance, it would seem that, considering that the existence of urban and architectural values in a particular area is determined in the context of the preparation of spatial planning documentation[2], the protection of these values takes place solely within the framework of the assessment of compliance of the construction project with the spatial planning documentation. Since the Building Act came into force, however, legislation[3] has distinguished between the assessment of whether the applicant’s project complies with the spatial planning documentation and the assessment of whether the project meets the objectives and tasks of spatial planning, which include the preservation of urban and architectural values, see above. The interpretation that these are two independently assessed criteria has been upheld by the Supreme Administrative Court, which ruled as follows: "The assessment of the conformity of the project with the issued spatial planning documentation and the conformity of the project with the objectives and tasks of spatial planning, in particular with the character of the area, with the requirements for the protection of architectural and urban values within the area are, pursuant to Section 90 of the Building Act, two different categories of aspects.“

The assessment of a construction project under current legislation is carried out pursuant to Section 96b(3) of the BA, but its method remains unchanged: even if the project complies with the spatial planning documentation, any nonconformity with the urban and architectural values in the area precludes the issuance of a positive binding opinion of the spatial planning authority. But what exactly are these urban and architectural values which are not necessarily identifiable from the spatial planning documentation, yet may play an important role in spatial planning proceedings? Because the language enshrined in the recently passed new Building Act also observes the aforementioned scheme, it is worth clarifying the content of the term “urban and architectural values.” 

If we sought a legal definition, we would look in vain; although the law uses the term, it does not define it at any point. Considering that even higher courts’ case-law does not provide a definition of this term, we have to resort to consulting state administration’s conceptual and methodological documents.

One definition of urban values can be found in the Methodology for Identification and Classification of Areas with Urban Values: “an area with a historically and aesthetically valuable urban composition including parts of settlements, dispersed developments or urbanized landscapes.”  A rough analytical definition of architectural values in a specific area can be derived from the list of characteristics that the Architecture and Building Culture Policy of the Czech Republic assigns to a quality architectural work; for buildings, the following are evaluated: aesthetic aspect, technical design, social value, setting in the environment, maintenance and other criteria. As is apparent, both definitions are rather vague.

We believe that the umbrella term “urban and architectural values” is broader than the term “heritage protection”. In keeping with the Ombudsman’s Office we are of the opinion that the concept of assessing conformity of a construction project with urban and architectural values in the area is a complementary tool for protecting valuable structures in cases where a certain area is not listed as a conservation site. Where developments are to be built in an area in which the state conservation authority invokes an interest pursuant to section 14(4) of Act No. 20/1987 Coll., on State Conservation, the state conservation authority issues a binding opinion within the proceedings conducted under the Building Act, which by itself provides the urban and architectural values in a particular area with the protection they deserve. Conversely, let’s imagine a situation where the approved spatial planning documentation does not sufficiently meet the objectives and tasks of spatial planning (e.g. urban and architectural values in the area have been insufficiently identified) - in such a case, the assessment of the conformity of the project with the urban and architectural values of a particular area is practically the only tool safeguarding the characteristic nature of the given development.

In practice, it is primarily the participants in spatial planning proceedings who draw attention to possible nonconformity of a construction project with urban and architectural values. The Building Act provides participants in the proceedings with the possibility to raise objections to the project under Section 89(1), where this argument can be applied. We are well aware, however, that this is an abusable tool that, if overused, might unnecessarily hinder development construction even in locations not requiring increased protection of values. In this respect, it is worth mentioning the Supreme Administrative Court’s case-law concerning the location of the construction work in an area without architectural and urban values. The Court has ruled that in the context of such a development, the “foreignness” of the project need not be detrimental; on the contrary, the Supreme Administrative Court has spoken on this occasion of “architectural provocation”, i.e. of projects that are “in conscious and architecturally sophisticated opposition to the existing style of development”, which may be “a style-forming element or the basis for a gradually emerging new architectural character of the locality.”

The aforementioned Supreme Administrative Court’s judgment 7 As 17/2010-101 is important for another reason. It clearly states (and the Methodology for Identification and Classification of Areas with Urban Values supports this conclusion) that even an entirely modern development can manifest urban and architectural values. In contrast to urban sprawl, where the developer sells off land plots with basic infrastructure and leaves the actual construction to the landowners, there are new housing developments in the Czech Republic that are implemented in line with a unified urban and architectural concept, comprise attractively designed public spaces and generally conform to the existing structures. Such developments may be of urban and architectural value and, therefore, eligible for protection in the implementation phase of spatial planning. Again, it is apparent that the protection of urban and architectural values in the area and conservation are not one and the same. 

In conclusion, it can be said that the concept of assessing the conformity of a project with the urban and architectural values in a specified area is a functional tool protecting the urban and architectural environment of a particular locality from disturbing construction projects. On the other hand, it should not be overestimated, as it only protects urbanistically and architecturally valuable buildings. Nonetheless, with regard to increasing pressure to speed up construction, it is positive that Czech legislation includes this concept, because, as is well known, the aesthetic value of construction is one of the prerequisites for the well-being of its inhabitants.

By Kristyna Faltynkova, Attorney at Law, PRK Partners