Lawfulness of the order issued by local authorities to release the public ownership. Limits of the appreciation right in the exercise of the public ownership right over lands

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

It is legal to issue the order of demolition of the provisional building executed without any building permit on the public property, belonging to the administrative-territorial unit, according to the mayor’s order (public authority competent to order the decommissioning of the building), under the circumstances in which the right to locate the garage on the public domain was revoked by the local public administration authority by issuing summons/letters, in the context of the provisional regime of the building of garage type and of the justification for using the land according to its intended use, in the public interest of the local community. The inspection of lawfulness of the statement of reasons for the order from the perspective of justifying the purpose for the future use of the land would conflict even with the purpose of holding the public ownership right over the respective land, requiring the local public authorities an excessive and disproportionate burden under the circumstances in which the need for the land use was substantiated in an objective manner by reference to the administrative documentation, communicated also to the beneficiary of the garage and taking into consideration that, upon issue of the agreement to locate this provisional construction on the public domain, the risk of its decommissioning was known. As well as the circumstance that the agreement did not indicate that the obligation to decommission the land by removal/demolition of the garage within 48 hours from the service of the summons would be conditional on the actual fulfilment of the purposes expressed by the public authority by completing a project which could involve access to such land or, possibly, by certifying the lawfulness of acknowledgment in favour of the owners being the neighbours of the land for the exercise of a right of passage or access to the public domain, as a result of the fact that the access to neighbouring public objectives/private properties could have actually been made in a different manner, by other public means, so that indicating such purposes in the notifications addressed to local public authorities objectively justifies the purpose of issuing the order and, at the same time, expresses the lawfulness of the statement of the reasons for the opportunity to take such measures in relation to the garage of the provisional construction type.