An complainant turned to the Ombudsman of the Republic of Slovenia (Ombudsman) regarding her inability to build on her property, designated for residential development. Namely, construction has been rendered impossible for many years due to a lack of communal infrastructure. In this regard, the Ombudsman turned to the Municipality of Beltinci (Municipality) and found a violation of the principle of sound administration in its conduct. The Municipality failed to explain the standstill lasting more than five years in conducting the contractual reparcelling proceedings of the relevant property. The Ombudsman then referred a suggestion for subsequent procedures to the Municipality, which the Municipality partially adopted but, based on their response, not yet realised. 

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The complainant notified the Ombudsman that her property is located in an area regulated by the Detailed municipal spatial plan and is designated for residential development. However, the construction of buildings is still impossible as the public communal infrastructure must be constructed before construction takes place under the Detailed municipal spatial plan. The complainant deems the situation to be unbearable as the property is valued at 35,000 EUR according to data by the Surveying and Mapping Authority of the Republic of Slovenia (Geodetska Uprava Republike Slovenije or GURS), the complainant pays all planned charges based on the estimated values. However, the actual market value of the property dropped to the value of agricultural land due to the impossibility of construction.

The Municipality explained that the Ordinance on the Land Use Planning Conditions for the Territory of the Municipality of Beltinci for the area Lipovci-Vzhod (Ordinance), where the property of the complainant is located, among others, envisaged the creation of a Detailed spatial act, the acceptance of which represents one of the preconditions for the possibility of construction in that area. As such, the Municipality joined in creating and accepting the relevant Detailed municipal spatial plan in 2014 and 2015. Accordingly, for the smooth issuance of building permits for construction on the relevant land and to build public municipal infrastructure, it is first necessary to carry out a contractual reparcelling to determine the building plots of existing buildings and transform curtilage into one or more plots, which can be carried out only with the agreement of all landowners within the area covered by the relevant Detailed municipal spatial plan. For this purpose, the Municipality held a meeting with the landowners in 2017 and informed them of the contractual reparcelling procedure and all necessary activities it entailed[1]. The municipal development project of the relevant area thus stalled because of insufficient interest of local landowners.[2] The Municipality thus stated that without the consent and cooperation of all owners, it could not initiate the reparcelling procedure, which is a prerequisite for construction in the relevant area and for municipal infrastructure construction.[3] However, under its capabilities, it continues its efforts to eliminate the mentioned construction restrictions in the area, either within the Municipal spatial plan of the Municipality of Beltinci, which is expected to be adopted in the first half of 2023, or via amendments to those above Detailed municipal spatial plan.

From the Municipality's response, the Ombudsman could not discern any further activities after 2017. The Ombudsman does, in fact, understand that in administrative procedures involving a large number of stakeholders, delays may occur due to a variety of reasons; however, the inactivity of the parties to the proceedings by itself, which is the only tangible reason that could be discerned from the Municipality's answer, cannot justify continued passivity from the perspective of the principles of sound administration. According to the Ombudsman's opinion, one should also not ignore the inappropriate transfer of responsibility for the continued and, by its legal nature, the complex administrative procedure of contractual reparcelling to the local community as a narrower part of the municipality, whose human, professional, and financial resources are greatly lacking compared to the capabilities of the Municipality. Considering the described facts, the Ombudsman further explained to the Municipality the option of initiating the procedure of administrative reparcelling,[4] which as an institution is intended precisely for situations such as the one in question, while emphasising that the Ombudsman always encourages all stakeholders encountered in various cases during its work to try to resolve matters by agreement,^[5] of course within the framework of the applicable legal orders. However, in this context, it is always necessary to consider the inherently unequal positions of the individual and the authorities, as a result of which the latter is expected to actively take a leading role until the issue can be resolved.[6] It does not seem that the Municipality has done anything to this effect in over five years. Of course, it cannot be overlooked that concrete unfavourable legal consequences have already arisen for the applicant as well as for other potentially affected individuals with the adoption of the Detailed municipal spatial plan (increased duties due to the higher value of the land),^[7] whereby the benefit that a change of intended land use generally brings to the owner is entirely meaningless because there are no utility connections, subsequently making any actual construction impossible. 

Considering the above, the Ombudsman suggested to the Municipality that it immediately and actively continues its efforts to conduct the contractual reparcelling procedure and take a leading role. If its efforts are unsuccessful within a reasonable time, the Ombudsman further suggests that the Municipality initiates and actively manages the administrative reparcelling procedure without undue delay. If its efforts are again unsuccessful, and if the introduced procedure of administrative reparcelling actually results in the opposition of at least two-thirds of the parties involved in the reparcelling procedure,^[8] the Ombudsman recommends that the Municipality follows through on its announcement and addresses the issues of the affected individuals in the procedure of drafting a new or amending the existing Detailed Municipal Spatial Plan.^[9]

The Ombudsman could in principle welcome the response letter explaining the additional activities by the Municipality[10] in terms of collecting offers for the execution of land surveying activities within the frame of the reparcelling of the area in question if said activities had not been already commissioned in 2017. Which activities have been performed then and which have been now, or even if it is the same activities, is not clear from the answer. Additionally, according to the Ombudsman, the universality of the Municipality's explanations was not convincing. In its answer, the Municipality failed to address the above-mentioned more than five years lasting procedural standstill in preparation for the execution of the contractual reparcelling. The referencing[11] of general facts about the long duration of procedures and budget limitations on spatial planning is not acceptable as a convincing argument for the Ombudsman. Therefore, the Ombudsman considers its suggestion partially adopted but not yet realised. Because the Municipality announced the continuation of the talks with owners in its response, the Ombudsman called on the Municipality to follow through and continue looking for a solution primarily through agreements with all relevant stakeholders, including the complainant. We recommended a review and adherence to the previous recommendation by the Ombudsman if the Municipality fails to follow through in a reasonable amount of time. We hope that no such standstills will occur in the Municipality of Beltinci in the future.

We deem the complaint justified. 17.2-6/2022

[1] An agreement was reached during this meeting to ask for an offer from a land survey company so that a cost estimation could be performed. This task was given to the president of the Lipovci Local Community (KS) and the owners.

[2] The Municipality seemingly did not receive any feedback from the president of the Local Community nor the owners regarding a possible offer related to the execution of land survey work or the existence of written consent forms for the execution of the contractual reparcelling of the area in question.

[3] According to its statements, the Municipality constructs communal infrastructure based on its financial capabilities in areas where the conditions for its construction are met, namely, where the plots are correctly measured, and ownership is transferred to the Municipality.

[4] Under Article 171 of the Spatial Management Act (Zurep-3), administrative reparcelling represents a spatial measure for plot consolidation and subsequent division in a manner that allows for the implementation of spatial arrangements planned in the municipal spatial implementation act. Administrative reparcelling is carried out if conditions for contractual reparcelling cannot be met.

[5] These are either relations between individual private entities or relations between an individual or a government authority.

[6] The initial approach of the Municipality in terms of calling a meeting with the plot owners in 2017 and the provision of relevant explanations on the reparcelling process was going in the right direction. However, a more active handling of the situation would be expected once the standstill was observed, for instance, in terms of urging the president of the Lipovci Local Community (KS) or taking the initiative themselves.

[7] So, the option of acquiring a legally binding construction permit and the actual construction.

[8] Under Indent 2 of Paragraph 1 of Article 186 of the ZUrep-3, the municipal administrative authority has the authority to stop the reparcelling process based on an outlook opinion by the reparcelling commission if (among others) the reparcelling is opposed by at least two-thirds of reparcelling stakeholders or plot owners who own at least two-thirds of the plot areas in the reparcelling area.

[9] Upon stopping the reparcelling process due to Indents 1 and 2 of Paragraph 1 of Article 186 of the ZUrep-3, the Municipality takes the facts on the possibilities of planning spatial arrangements in such areas into account based on Indent 5 of the same Paragraph during the preparation of the Municipal spatial plan and excludes such plots from the area of construction plots.

[10] Offers for the execution of land surveying activities as part of the reparcelling procedures of the subject area have been procured, and other options have supposedly been thoroughly studied, such as amending the Detailed municipal spatial plan, location inspections, and the annulment of the Detailed municipal spatial plan as part of the adoption process of the Municipal spatial plan for Beltinci. 

[11] The Municipality highlighted the complexity of matters in the area of spatial planning, which requires disproportionate amounts of time, requires much funding, and subsequently represents a significant burden for the municipal budget. As such, it is its opinion that it is vital to perform an expert review of the purposefulness of the individual spatial arrangement and adequately determine the intention of each respective plot owner in the spatial planning area, all the while having regard to budget capabilities.