NTA Audit of an island Municipality Building Service, regarding the revision of a building permit for the extension of an existing tourist accommodation facility

Subject: NTA Audit of an island Municipality Building Service (YDOM), regarding the revision of a building permit for the extension of an existing tourist accommodation facility

Following a request by the Ministry of Environment and Energy/Secretary-General for Spatial Planning and Urban Environment, the National Transparency Authority conducted an audit of compliance with the provisions in force by the Municipality Building Service (YDOM) of an island municipality regarding a Building Permit Revision for the extension of an existing tourist accommodation unit.

Findings:

1. At the time the acts under review were issued, there was no evidence of the completion of the first-tier spatial planning for the island’s municipality.
2. Regarding the area in question, which is of significant ecological value and constitutes an exceptional natural reserve (biotope) and, as such, requires enhanced protection, it appears that no specific restrictions have been enacted regarding interventions or activities that may have adverse environmental impacts.
3. As regards the possibility of building on a plot of land, having frontage on an officially approved road constitutes a prerequisite for the further assessment of the possibility of building on it and the establishment of the intended use in each case.
4. The provision of a frontage on a public road is directly linked to the recognition of a public space as a road through an appropriate administrative act.
5. Under the current regulatory framework, rural roads do not render plots of land buildable, except in specific cases of land use, which do not include the tourist accommodation/facilities use examined in this case.
6. Following the entry into force of Law 4759/2020, the possibility of issuing a Building Permit (BP) or revising an existing BP in accordance with the previously applicable building regulations is subject to the fulfilment of one of the relevant conditions set out in the transitional provision of Article 40 of the aforementioned Act. In the case under consideration, none of the conditions specified in that transitional provision was found to have been met.
7. By issuing a Pre-Approval for the Revision of the Building Permit, the Municipality Building Service authorized the issuance of an enforceable administrative act:

• On a plot of land fronting an ‘agricultural road (dirt track)’, as indicated on the topographical plan, which (road) does not appear to have documentation proving it is a lawful public road, despite the established relevant case law and, in particular, the previously issued decision of the Plenary Session of the Council of State (No. 176/2023).
• On the basis of an incorrect calculation of certain planning parameters, since the Department failed to identify that, although the approved topographical plan indicated a building coefficient (floor area ratio) of 0.18[1], the calculation of the potentially permissible building area [2] in the approved coverage diagram did not apply the building coefficient prescribed by the provisions of Article 34 of Law 4759/2020, which were in force at the time the administrative act was issued. Instead, the coefficient provided for under the previously applicable provisions [3] was applied, despite the transitional provision of Article 40 of Law 4759/2020 not having been satisfied. Consequently, the permitted floor area was calculated as 563.40 m² greater than that permitted at the time the decision was issued, with the result that the approved construction in progress exceeded the permitted floor area by 502.91 m²
• The Preliminary Approval was issued by the Municipality Building Service (YDOM) without adequate verification of the required correspondence between the following details:
  • Those indicated on the topographical plan and the coverage diagram.
  • The urban planning dimensions indicated in the body of the Preliminary Approval document, the coverage diagram and the technical report.

8. Separately, regarding the revised Building Permit, which was issued under the responsibility of the engineer following the pre-approval, the following additional findings emerged, affecting its legality:

• Failure to upload to the e-Adeies electronic permitting system the approved plans accompanying the favourable opinion issued by the Central Council for Architecture (KES.A.). This omission made it impossible to verify whether the plans approved by KES.A. were identical to those used as the basis for issuing the revised Building Permit.

• Discrepancies between the planning parameters recorded in the revised Building Permit document and the corresponding parameters in the Pre-Approval document.
• Execution of construction works before the issuance of the audited revised Building Permit.

The above findings affect the legality of the issued Preliminary Approval and, consequently, affect the legality of the subsequent enforceable administrative act revising the Building Permit, which was based on that Preliminary Approval.

Recommendations:

• The Ministry of Environment and Energy should take the necessary measures to prevent irreversible changes to the island’s urban planning.
• The Building Permits Department should take action to revoke the administrative acts under review.

The Audit Report was forwarded to:

A) The Public Prosecutor at the Athens Court of Appeal, for the criminal assessment of the matters raised in the report, in accordance with Article 97(2) of Law 4622/2019.

B) The Mayor, as the competent disciplinary authority, to exercise the powers and responsibilities provided for by law.

^[1] For hotels.

^[2] In the hypothetical scenario where the plot of land was suitable for building.

^[3] of Presidential Decree of 6 October 1978, which was in force at the time of issue of the original (from 2019) Building Permit.