Planning rules restricting building rights
Limitation on ownership of property
RULING No. 496/2008
Case no. 523/2007
Rapporteur: Justice Maria Lúcia Amaral
Ruling of the 3rd Section of the Constitutional Court:
1. On 5 May 2003 A. Limited brought a contested appeal before the Supreme Administrative Court in which it sought the annulment of an order dated 4 March 2003, by which the Secretary of State for Planning and Assistant to the Minister ordered the demolition of a detached house belonging to the appellant and located at Plot no. …, Praia da Falésia, Várzeas de Quarteira, Albufeira.
On 11 November 2004 the Supreme Administrative Court (STA) issued a ruling denying this contested appeal. In the part of that ruling which is relevant to the case before us, that Court made the following remarks:
5. The appellant also argues that if the aforementioned provisions of the Coastal Strip Planning Instrument (POOC) were held to prevail over the Algarve Regional Planning Programme (PROTAL), they would in any case be unconstitutional because they breach Articles 2, 61(1), 62(1) and 165(1)b of the Constitution of the Portuguese Republic (CRP), wherefore the order against which the appeal has been brought would be null and void because it is based on unconstitutional rules.
Once again, the appellant is wrong.
This Supreme Court’s jurisprudence contains repeated decisions that our Constitution does not protect the right to build as if it were a necessary and natural element of the Land Law, and that the need for planning permission does not injure the right to property as set out in Article 62(1). The right to build must always be exercised within the urbanistic conditions laid down by law, in such a way as not to preclude other rights and duties that are also enshrined by the Constitution (see Rulings dated: 01.04.2004 – Appeal 1,550/03; 16.01.2003 – Appeal 1,316/02; 31.03.2004 – Appeal 35,338; and 02.12.2001 – Appeal 34,981 – the last two handed down by the full Court sitting in Plenary).
As Ruling dated 02.07.96 – Appeal 32,459 eloquently says:
“As provided for by Article 62(1) of the Constitution of the Portuguese Republic, the nature of the right to property is only analogous to the fundamental constitutional rights as an abstract category interpreted as a right to property (i.e. as the possibility of acquiring, or the capacity to acquire, things and goods and to freely enjoy them and their availability), and not as a subjective right to property (i.e. as a direct, immediate and exclusive right over certain concrete goods).
What is thus at stake is the right to build and its subjection to the rules governing planning permission – i.e. a component of the right to property which does not form part of that right’s essential core, thus does not enjoy the benefit of the rules governing the constitutional Rights, Freedoms and Guarantees.”
As such, the body against which the appeal has been brought did not breach the aforesaid provisions of the CRP by holding that the aforementioned provisions of the POOC had themselves been breached by the planning permit.
We therefore do not uphold conclusions 6, 8 or 9.
6.Finally, the appellant argues that the demolition order is unjust, disproportionate and discriminatory compared to other, identical neighbouring situations.
As we know – and the jurisprudence of this Supreme Administrative Court is widely accepted in this respect – the constitutional principles of equality, justice and proportionality function as limits on discretionary power, and only encounter their justification in this domain. In other words, these principles only take the shape of an autonomous source of invalidity when the Public Administration enjoys the freedom to choose how to behave, and do not apply in the domain in which the Public Administration’s activities are bound by law (see Rulings dated: 22.04.2004 – Appeal 1,200/03; 05.12.2002 – Appeal 1,130/02; 13.01.2000 – Appeal 36,585; 13.05.99 – Appeal 42,161; 20.02.97 – Appeal 36.676; and 20.01.98 – Appeal 34,779, the latter handed down by the full Court sitting in Plenary).
As the Plenary decision referred to above says:
“The principles of equality and justice constitute postulates or action rules with which the Public Administration must comply when it engages in its discretionary activities – activities in which the Public Administration is free to choose alternative behaviours – and thus function as internal limits on those activities. Thus these principles are not applicable to the domain in which the Public Administration’s activities are bound by law – activities which consist in a simple subjection to the normative provisions of the current legal commands applicable to a given concrete case.”
So, according to the above jurisprudence, these principles are only autonomous and are only legally relevant within the scope of the Public Administration’s discretionary activities, whereas in the domain in which the Public Administration’s activities are bound by law – a domain in which there is a mere subjection of a concrete situation to a normative provision – they are effectively the same as the principle of legality.
It is easy to see that the situation to which the case before us refers undoubtedly involves an action in which the Public Administration is bound by law – the normative content of the legislation and regulations mentioned above. This means that in this case that action cannot be in breach of the aforesaid constitutional principles set out in the aforementioned precepts of the Constitution.
The Court therefore does not uphold conclusion 7.
2.The appellant did not agree with this decision and attempted to appeal it to the Constitutional Court. However, that appeal was not admitted, because under the terms of Article 24a of the Statute governing Administrative and Fiscal Courts (Executive Law no. 129/84), the ruling in question, which was handed down by the initial level of the STA, can only be appealed to the Plenary of the applicable Section of that Court.
3.Following a number of procedural vicissitudes, the request to appeal (sheet 306 of the case file) was admitted to the Plenary of the Administrative Litigation Section of the Supreme Administrative Court. In its conclusions before that Plenary, the appellant argued as follows:
1.In deciding the ruling against which the present appeal has been brought, the Court should have heard the argument presented by the appellant herein: that “if the interpretation which Albufeira Municipal Authority always implicitly attributed to the pertinent provisions (Articles 9, 20, and 91) of the Burgau Vilamoura POOC (Council of Ministers Resolution no. 33/99 dated 27 April 1999), and which at a certain moment in time was (apparently) reflected in the position taken by the Regional Directorate of the Environment and Planning (DRAOT), prevails, the building permit should also be considered valid under the terms of the said POOC”.
2.The ruling against which the present appeal has been brought should have acknowledged the existence of legal situations which the law governs via the legal format of ‘acquired rights’, and should particularly have acknowledged an acquired right to the non-alteration of the essence of the conditions governing planning permission for the building, or an acquired right to obtain a building permit on condition that the essential terms of the legal framework that was in force when the land was divided into building plots were complied with.
3.Articles 23(2) and 25(1) and (2) of Executive Law no. 390/99 of 22 September 1999 mean that there is a rule that planning instruments must be coordinated with one another, with regional plans in principle prevailing over special plans, albeit in exceptional cases the latter can revoke or alter rules laid down by the former, on condition that they do so expressly. In the present case this requirement for express revocation or alteration is not met.
4.If the court’s understanding were to be that the applicable law (Article 20b of the POOC Regulations, Article 91 of the same POOC, and especially Article 105b of Executive Law no. 380/99 of 22 September 1999) inexorably means that the only decision permitted by law is the demolition order, then those rules – particularly the last of the three – would be in breach of the principle of proportionality.
5.Having said this, the best interpretation of Article 105(1)b of Executive Law no. 380/99 of 22 September 1999 is that it does not establish a binding power to demolish.
6.As such, the act of demolition could only be undertaken if it were proportional – i.e. if the purpose could not be achieved by less onerous means. In the case at hand, there were less onerous alternatives, so the administrative act of demolition breaches the principle of proportionality.
7. The administrative act of demolition breaches the principle of equality (Article 262 of the CRP), inasmuch as the administrative authority treated this property and the appellant’s situation differently from the way in which it handled other, identical situations in the neighbourhood.
8. The provisions that provide authority for the administrative act of demolition are unconstitutional because they breach Articles 2, 61(1), 62(1) and 165(1)b of the CRP).
In a ruling dated 6 March 2007, the Plenary of the Administrative Litigation Section of the Supreme Administrative Court denied the appeal. Point 5 of the grounds it gave for this decision reads as follows:
5. Lastly, let us look at the claim that the provisions which provide authority for the administrative act of demolition are unconstitutional because they breach Articles 2, 61(1), 62(1) and 165(1)b of the CRP. We should recall that inasmuch as the legal framework is the one we indicated above, we are in the presence of an order to demolish a construction which was built in direct disobedience of the terms of a special planning instrument – the Burgau Vilamoura POOC – and was thus issued on the grounds that the act which gave the planning permission was null and void. Article 2 defines a democratic state based on the rule of law; Article 61(2) enshrines the freedom of private economic enterprise; Article 62(1) enshrines the right to private property; and finally, Article 165(1)b gives sole responsibility and power to legislate about constitutional Rights, Freedoms and Guarantees to the Assembly of the Republic. The outcome of the decision against which the present appeal has been brought – and which we now reaffirm – is the only one that could result from the concrete application of the principles listed by the aforesaid Article 2: the guarantee of all the rights of the intervening parties, the separation of powers, and compliance with the rules issued by the bodies with the responsibility and power to issue them. There is nothing in the decision which causes the slightest injury to any right that gives rise to the free exercise of private enterprise (in the ordinary sense of the freedom to act in the economic field with a view to obtaining a profit). Thus the only substance that remains in this argument concerns the ramifications of the jus aedificandi.
The truth of the observation that the jus aedificandi is not included in the essence of the right to property – an observation that has repeatedly been made in the jurisprudence of both this Court and the Constitutional Court – is deemed unquestionable. The fact is that if it were otherwise – in other words, if this right were to form part of the core of the right to property – any citizen could build whatever he wanted, as he wanted, when he wanted, and it would be enough that he did so on land that belonged to him – something that would not be acceptable by today’s civilisational standards. That which its authors sought to achieve by enshrining the right to property in the Constitution is (contrary to the case in political systems in which private property does not exist) the affirmation that citizens – every citizen – are guaranteed access to the private appropriation of any goods or real estate property (not every type, given that some cannot be privately appropriated). However, as we know, any right that is protected by the Constitution can be constricted (we should note that the first restriction is imposed by paragraph  of Article 62 itself, inasmuch as that protection is granted in accordance with the Constitution, and also by paragraph , which provides for the possibility of requisition and expropriation); and that constriction is imposed by the fact that we live in a community and have to ensure that the individual rights of all the subjects who form part of that community are compatible with one another. The unrestricted use of individual rights would make life in society as we know it today unviable. Everything that has been said in the previous points means that – as in fact the appellant itself acknowledges, to the extent that it applied for the necessary planning permission and complied with the requirements that were imposed on it over time, and did not presume to build in a way that was totally lacking in subordination to the existing rules – urbanism is one of the areas in the which the public interest is at its greatest (its importance has grown rapidly in recent years) and where the constriction of the right to property is most visible. We only have to look at the proliferation of the various general and special plans, Municipal Master Plans, provisional measures, the Natura network, the Ecological Reserve, the Agricultural Reserve, etc, etc, etc – instruments that are always accompanied by innumerable building restrictions. Gomes Canotilho and Vital Moreira say just this in “Constituição da República Portuguesa Anotada”, 1993 edition, p. 333: “Particularly forceful limits on this aspect of the right to property are those which occur in the urbanistic and planning domain, to the point at which we can ask ourselves whether the right to build – jus aedificandi – is included in the right to property, or whether it is rooted in the authorising administrative act (building permit) instead”. The opinion that the “jus aedificandi is not directly covered by the (constitutional) right to property” can be found (among other places) in Rulings which the Constitutional Court issued on: 1.6.88 in case 88-0013; 18.11.87 in case 87 0010; 13.4.94 in case 93-0002; 10.12.86 in case 84-0111; 29.6.88 in case 88-0003; and 28.10.93 in case 92-0397. The opinion that “The jus aedificandi is not included in the right to private property referred to by Article 62 of the CRP, but is rather the result of a legal attribution derived from the urbanistic legal rules which model it, and can only be exercised if it remains within the limits, and complies with the restrictions, imposed by that modelling, which in no way conflicts with the subject of private economic enterprise and the free practice thereof enshrined by Article 61(1) of the CRP”, can be found in the rulings which the STA handed down: on 11.1.05 in appeal 560/04; on 18.5.04 in appeal 167/05; on 14.3.06 in appeal 762/05; on 14.12.05 in appeal 807/05; on 14.12.05 in appeal 883/03; and on 19.10.05 in appeal 767/05 (among many others).
Given that the jus aedificandi does not form part of the core of the right to property, it is also not covered by the protection which the Constitution affords to that right when it applies the rules on Rights, Freedoms and Guarantees to it – something it does by considering that the right to property is analogous to the fundamental rights enshrined by the Constitution (Article 17). In this respect only the guarantee to access to the private appropriation of any form of property possesses this analogous nature, as the STA says in the ruling which it handed down on 2.7.96 in appeal 32;459: “As provided for by Article 62(1) of the Constitution of the Portuguese Republic, the nature of the right to property is only analogous to the fundamental rights as an abstract category interpreted as a right to property (i.e. as the possibility of acquiring, or the capacity to acquire, things and goods and to freely enjoy them and their availability), and not as a subjective right to property (i.e. as a direct, immediate and exclusive right over certain concrete goods).”
The legislation (Article 105b of Executive Law no. 380/99 of 22.9.1999) under whose authority the order to demolish the structure that had been built in breach of the applicable legal framework (direct breach of a POOC) was issued, did not contradict this essential core of the right to property. This also means that it was not included within the sphere of the Assembly of the Republic’s partially exclusive responsibility to legislate (as laid down by Article 165a of the CRP), which was thus also not breached. What is more, Executive Law no. 380/99 was itself issued “As part of the development of the legal rules laid down by Law no. 48/98 of 11 August 1998”, which was thus the basis for the Executive Law’s authority – something that would in its own right preclude the alleged unconstitutionality.
4. A. Limited then brought the present appeal before the Constitutional Court under the terms of Article 70(1)b of Law no. 28/82 of 15 November 1982 (the Law governing the Constitutional Court – the LTC). It said that “the rules whose constitutionality the appellant in this case is questioning and asking to be considered are those set out in Article 20(1)b of the Burgau-Vilamoura Coastal Strip Planning Instrument Regulations (the POOC Regulations), approved by Council of Ministers Resolution (CMR) no. 33/99 of 27 April 1999, in conjunction with Articles 9(2) and 91 of the same POOC Regulations, and Article 105(1)b of Executive Law no. 380/99 of 22 September 1999, with the interpretation given to them by the court against whose decision the present appeal is being brought.” The request to bring the present appeal also says that “the constitutional rules which have been breached are those set out in Articles 2, 18(2) and (3), 61(1), 62(1), and 165(1)b of the Constitution of the Portuguese Republic (CRP)”.
5. Once the appeal had been admitted the appellant concluded its arguments as follows:
1. If they are interpreted as they were by the STA, the rules set out in Articles 20(1)b, 9, and 91 of the Burgau-Vilamoura POOC Regulations, and in Article 105(1)b of Executive Law no. 380/99 of 22 September 1999, breach Article 165(1)b of the CRP, given that by affecting the right to property – a right whose nature is analogous to that of the constitutional Rights, Freedoms and Guarantees – they infringe on the Assembly of the Republic’s exclusive responsibility to legislate.
2. The provisions of Article 20(1)b of the POOC Regulations are also contrary to Article 62 of the CRP, when taken in articulation with Articles 17, 18, and 3, all of the CRP, to the extent that they reduce the extent and scope of the essential content of the right to property.
3. It may be that the appellant’s right to private economic enterprise itself, as enshrined by Article 61(1) of the CRP, has been undermined.
4. The normative solution that simply opted for immediate demolition is excessive or unnecessary.
5. In addition, the principle of security under the law – which, as the Constitutional Court has acknowledged, is to be found in various constitutional precepts and underlies the very notion of a democratic state subject to the rule of law adopted by the Constitution (Article 2 in particular) – has also been injured.
The MinistER OF THE ENVIRONMENT, PLANNING AND REGIONAL DEVELOPMENT then presented counter-arguments, with the following conclusions:
i) The appellant does not possess any “acquired right to build”, nor is there any injury to its “right to private property” – either as a result of PROT(AL), or because of its building permit (dated 2001), or of any other legal instrument – which would allow it to ignore the imperative provisions of the Burgau-Vilamoura POOC, particularly those which state that:
– “The natural cliff areas are composed of particularly sensitive zones..., including the cliffs themselves and the associated strips of land above them...” (Article 19); and that
– “In the natural cliff areas “new constructions, including swimming pools, terraces and other waterproofed surfaces, even if they are given over to use by residential buildings...” are prohibited (Article 20b);
ii) It appears to us that when interpreted in the way in which the STA interpreted them, the rules set out in Articles 20(1)b, 9, and 91 of the Burgau-Vilamoura POOC Regulations, as approved by CMR no. 33/99 of 27.4.1999, and in Article 105(1)b of Executive Law no. 380/99 of 22 September 1999, are correct and do not breach any rule laid down by the CRP, particularly those set out in Articles 61, 62, and 165(1)b.
iii) As such, and once everything has been taken into consideration, neither the appellant’s arguments, nor its conclusions nos. 1 to 5 should be upheld.
This Court must now consider and decide.
Grounds for Decision
6. The scope of the request
In this appeal on the grounds of unconstitutionality, the first thing that is at stake is the rule set out in Article 20(1)b of the Regulations governing the Burgau-Vilamoura Coastal Strip Planning Instrument (hereinafter referred to as the “POOC”), as approved by Council of Ministers Resolution no. 33/99 of 27 April 1999. The text in question reads as follows:
1. The following activities are forbidden in the natural cliff areas:
b) New constructions, including swimming pools, terraces and other waterproofed surfaces, even if they are given over to use by residential, hotel or tourist buildings or sporting facilities.
The appellant would like the Court to consider the constitutionality of this rule when taken in conjunction with others: those set out in Articles 9(2) and 91 of the POOC Regulations and that set out in Article 105(1)b of Executive Law no. 380/99 of 22 September 1999.
Paragraph no. (2) of Article 9 of the POOC states that “occupation of the cliff risk and protection strips” shall obligatorily be subject to case-by-case submission by the interested parties of “proof of the safety conditions (…), to be provided in the form of specific studies (…)”. Article 91 of the same POOC states that the latter’s provisions shall not undermine rights that had already been acquired by the date on which the POOC came into force. Finally, and under the heading “embargo and demolition”, Article 105(1)b of Executive Law no. 380/99 (as amended by Article 1 of Executive Law no. 310/2003 of 10 December 2003), states that:
Without prejudice to the applicable fine, work may be embargoed, or constructed works demolished, in the following cases:
b) By the Minister of Cities, Planning and the Environment, when they are in breach of a special planning instrument.
The appellant argues that this set of rules, “when interpreted in the way in which the court against whose decision the present appeal has been brought interpreted them”, is contrary to the “principles and rules” enshrined by Articles 2, 18(2) and (3), 61(1), 62(1), and 165(1)b of the Constitution. However, in order to understand the question of constitutionality which has thus been brought before the Court, it is necessary for the appeal request on the grounds of unconstitutionality to be seen within the broader context of the factual and normative situation of which it forms a part.
7. The context of the issue before us
The ‘facts’ that surround this issue (which the above report renders partly understandable) can be summarised as follows. Since 1998 the appellant has been the owner of a plot of land in the Albufeira Council Area. Since 1986 this plot has had a municipal permit for the construction of a detached house with up to two floors. Under the terms of Executive Law no. 351/93 – which established a set of rules that provide for the “lapse” of urbanistic permits and approvals which are incompatible with the provisions of a Regional Planning Instrument (PROT) that is issued after they were – the appellant applied for and obtained a declaration that the aforesaid municipal permit was compatible with the rules governing the use, occupation and transformation of land laid down by the Algarve Regional Planning Instrument (PROTAL), which had been approved in 1991. The appellant consequently applied to the competent Municipal Authority for a building permit, which the Municipal Authority approved in October 2000. Following the completion of the building project, the applicable licence to use the property was issued in 2002.
However, as we have seen, in April 1999 the Council of Ministers issued a Resolution approving the Burgau-Vilamoura Coastal Strip Planning Instrument Regulations (POOC), Article 20 of which prohibited new constructions “in natural cliff areas”. On the basis of this prohibition – and under the terms of the powers contained in the abovementioned Article 105 of Executive Law no. 380/99 – in 2003 the Secretary of State for Planning and Assistant to the Minister ordered the demolition of the construction which the appellant had already built. A. Ltd. brought a contested appeal against this order before the Administrative Litigation Section of the Supreme Administrative Court, in which it was unsuccessful. A. did not agree with this decision and appealed to the Plenary of the same Court, which upheld the Section’s decision.
In its appeal (to the Plenary of the Supreme Court) the appellant argued that the “provisions that provide authority for the administrative act of demolition” were unconstitutional – an argument which the Supreme Court essentially denied (sheet 538 et seq. of the case file). It is thus against the latter decision to apply a “rule” whose unconstitutionality had previously been raised that the present appeal on the grounds of unconstitutionality has been brought.
8. The rules before us and the questions of constitutionality
In the arguments it made in its appeal to the Plenary of the Supreme Administrative Court, the appellant said that the “provisions that provide authority for the administrative act of demolition” – provisions it argued are unconstitutional – were a “set” or a “normative solution” that was essentially made up of the following rules:
1. The rule concerning the prohibition of new constructions in natural cliff areas (Article 20b of the Burgau Vilamoura POOC), when interpreted in such a way as:
2. Not to allow interested parties to demonstrate that new buildings in such areas possess the conditions needed for their safety, as – in the appellant’s opinion – the provisions of Article 9(2) of the POOC do permit.
3. Not to safeguard the right to that which has already been built (in the specific conditions applicable to the case before us), as – in the appellant’s opinion – results from the provisions of Article 91 of the POOC.
4. Not to interpret the power to order the demolition (of works that are built in breach of the provisions of special plans), which Article 105(1)b of Executive Law no. 380/99 grants to the administrative authority, as a power whose exercise is discretionary and not obligatory.
As we have seen above, it is precisely this “normative solution” – which the Supreme Administrative Court effectively applied – that is the object of the present appeal on the grounds of unconstitutionality.
The appellant gives two types of reason for its argument that this “set of rules”, or this “normative solution”, is unconstitutional when interpreted as it was in the decision against which the present appeal has been brought. The first type is of an organic or competency-based nature. The appellant begins by arguing that the “normative solution” which created the provisions that provide authority for the administrative act of demolition is unconstitutional in organic terms, because it is in breach of the exclusive responsibility to legislate which Article 165(1)b of the Constitution attributes to the Assembly of the Republic, inasmuch as it results in a “restriction” on a constitutional Right, Freedom and Guarantee that could only be regulated by a law issued by Parliament. It then goes on to argue that the “concrete applicative aspect” of the same “rules” is unconstitutional, because it (substantially) injures: the constitutional guarantee of property enshrined by Article 62 of the CRP; the right to private economic enterprise enshrined by Article 61; and the sub-principles of proportionality and of the protection of trust, which derive from the principle of the democratic state based on the rule of law enshrined by Article 2.
Let us now see whether any of these reasons should be upheld.
9. On the question of organic constitutionality
The appellant argues that, apart from anything else, the “normative solution” before us is unconstitutional in organic terms, because it includes rules derived from administrative regulations and a legislative act made by the government in a domain which should only be governed by a parliamentary law, inasmuch as the “matter” at stake concerns Rights, Freedoms and Guarantees provided for by Article 165(1)b of the Constitution.
The appellant presents three key arguments to justify this position. Firstly, the “normative solution” before us has been given a purpose which takes away property, or at least a purpose which justifies the taking away of faculties that were already consolidated and were inherent in the right to property; secondly, the right not to be deprived of one’s property, as set out in Article 62 of the CRP, is a fundamental right whose nature is analogous to that of the Rights, Freedoms and Guarantees enshrined by the Constitution; and so thirdly, the right not to be deprived of one’s property is due the special status which the Constitution confers on this type of right, and which includes the need for any regulation to be the object of a parliamentary law.
The appellant cites the jurisprudence of the Constitutional Court in support of its reasoning, but – and we say so straight away – it is wrong to do so.
It is true that the Court’s firm jurisprudence states that although it is included in the Constitution under the Title on Economic, Social and Cultural Rights, the right to private property is structured in such a complex way that it undoubtedly includes a number of rights and faculties whose nature is analogous to that of the Rights, Freedoms and Guarantees enshrined by the Constitution; and that those analogous rights and faculties certainly include the right of every person not to be arbitrarily deprived of his property (in this sense, among many others see Ruling no. 491/2002, which is available for consultation at www.tribunalconstitucional.pt; and also Rulings nos. 431/94 and 267/95, in Acórdãos do Tribunal Constitucional, Vol. 28, p. 7 et seq., and Vol. 31, p. 305 et seq., respectively).
However, for us to say, as the appellant would like us to, that it is this right which is at stake in the present case – in such a way that the “normative solution” before us should be considered an integral part of the legislation which it is the Parliament’s exclusive responsibility to pass under the terms of Article 165(1)b of the CRP, because it produces an effect that “takes away” faculties contained in a right that is analogous to a Right, Freedom and Guarantee enshrined by the Constitution – it is essential to prove that the Constitution sees the right to build as an integral element of property, which can as such be opposed to the will of the ordinary legislative authorities. This means that the question of organic constitutionality posed by the appellant can only be resolved if we initially resolve the first of the substantial constitutionality questions raised: as the decision against which the present appeal has been brought says (sheet 538 of the case file), “the only substance that remains in this argument concerns the ramifications of the jus aedificandi”.
We will address this topic below.
10. On the questions of substantial constitutionality
10.1. The appellant argues that “the provisions that provide authority for the administrative act of demolition” are unconstitutional because they substantially injure the guarantee which Article 62 of the Constitution confers in relation to property.
The subject of the precise object of this guarantee – i.e. that in which its content and scope consist – is abundantly mentioned in the Court’s jurisprudence. In harmony with its earlier jurisprudence, the Court said in both the abovementioned Ruling no. 491/2002 and Ruling no. 187/2001 (also available for consultation at www.tribunalconstitucional.pt) that the guarantee which the Constitution confers in relation to property should be interpreted in accordance with a number of essential postulates.
The first of these is the principle that the civil-law concept of property is not the same as the corresponding constitutional concept. The fact is that the legal goods protected by Article 62 of the Constitution are not the same goods as those which are governed by the civil law when it typifies real rights – especially the maximum real right. When it “guarantees” the existence of property, the Constitution primarily protects the faculty which private individuals have to gain access to goods that are capable of being appropriated (res intra commercium), and to use and dispose of them under the terms laid down by the entire legal, constitutional and infra-constitutional order. This being so – and this is the second postulate derived from the whole of the interpretation that has been given to the content of this specific constitutional parameter – Article 62 of the CRP not only enshrines fundamental rights (with a structure analogous to that of the Rights, Freedoms and Guarantees enshrined by the Constitution as a whole), but also an important institutional guarantee.
The rights that are acknowledged here are the right of every person not to be arbitrarily deprived of his property (specifically governed by Article 62), which we have already analysed, and the right of every person to gain access to goods that are capable of being appropriated, and to use and dispose of them – inter vivos and mortis causa – under the terms laid down by the whole legal order (a right that is specifically governed by Article 62). However, because of the existence of these rights – and because of the specific content they must be acknowledged to possess – the “guarantee” which Article 62 of the CRP enshrines in relation to property also has an important objective or institutional aspect, which is reflected in certain impositions that are placed on the ordinary legislative authorities. Negatively, in the first place, the latter are forbidden to “affect” or “annihilate” the essential core of the (infra-constitutional) institution of “property”, under the terms of which the rights acknowledged by the Constitution are exercised; but in addition to this – and positively – within the scope of their regulatory activities, the legislative authorities are obliged to shape the definitive, specific content which that institution is supposed to possess.
This positive obligation on the part of the ordinary legislative authorities, which is included in the “order to regulate” “property” which the Constitution gives them, must be complied with in accordance with the Constitution. This is what the final part of Article 62(1) says. This means that in this domain the freedom to shape legislation is partially limited by the requirement to comply with certain constitutional limits: the CRP obliges the legislative authorities to “shape” “property”, but can only do so under the terms which it – the Constitution itself – lays down; i.e. it must take account of the constitutional system as a whole.
The appellant argues that in the present case the guarantee which the Constitution affords to property has been breached. In saying this, the appellant is thus arguing that the legislative authorities did not issue the ordinary-law rules which forbade the construction it built, “in accordance with the Constitution”, given that they were in breach of the limits which the constitutional system as a whole places on the legislative act of shaping the concept of property.
However, as the Court has always said (among many others, see Rulings nos. 329/99, 149/99, 517/99 and 723/2004, all of which are available for consultation at www.tribunalconstitucional.pt), this is a conclusion for which there are no grounds.
The prohibition on building was established by a rule in a special planning instrument that was approved by a Council of Ministers Resolution, in harmony with the provisions – apart from anything else – of the Basic Law governing the Planning Policy (Law no. 48/98 of 11 August 1998), and of the Legal Rules governing Town and Country Management Instruments (Executive Law no. 380/99 of 22 September 1999, which further developed the terms of the Basic Law).
Apart from anything else, the issue by the ordinary “legislative authorities” of all these rules represents compliance with the provisions of Article 9e of the Constitution, which states that one of the state’s fundamental tasks (in addition to defending nature and the environment) is to “ensure proper town and country planning”. At the same time, Article 65 of the Constitution enshrines the right to housing and urbanism, fulfilment of which requires that the state, the autonomous regions and local authorities define “rules governing the occupancy, use and transformation of urban land, particularly by means of planning instruments and within the overall framework of the laws concerning town and country planning and urbanism” (paragraph ); just as fulfilment of the right to the environment and quality of life (Article 66b) requires the state to promote town and country planning.
So, contrary to the appellant’s arguments, the rules in question did not exceed the limits which the CRP imposes on the legislative authorities in the performance of their task of “shaping” “property” in accordance with the Constitution. Quite the opposite. Given that in general, “correct town and country planning” is one of the state’s fundamental tasks – and given that performance of that task represents, quite apart from anything else, fulfilment of the state’s duties to make a reality of the rights to housing and urbanism, and to the environment and quality of life – drawing up town and country planning rules that limit the right to build falls entirely within the core legislation-shaping faculties which are available to the legislative authorities when they regulate the way in which people can gain access to, use and dispose of “private property”, and when they do so in compliance with the order given by the final part of Article 62(1): “in accordance with the Constitution”.
Given all this, it is not possible to consider that the right to build falls within the scope of the extent to which the Constitution directly governs property and thus imposes itself on the ordinary legislative authorities as a right which is analogous to a constitutional Right, Freedom and Guarantee. For the same reason we cannot conclude that all the rules which have the effect of “taking away” such a right are subject to the Assembly of the Republic’s exclusive responsibility to legislate, as laid down by Article 165(1)b of the Constitution.
What is more, this conclusion also extends to the appellant’s other argument – that the rules before us are also in breach of the right to private economic enterprise enshrined by Article 61 of the CRP.
It is certain that by enshrining such a right – also known as freedom of enterprise – the Constitution seeks to guarantee that within the context of a market economy and an open society, the production and distribution of goods and services are not things that are unavailable to private actors; but it is also certain that the limits on such a guarantee will be those derived from the whole constitutional system; and if one of them is the state’s fundamental task of ensuring that the country’s planning is conducted correctly (a state task which is in fact implemented in accordance with Articles 65 and 66 of the CRP), then the exercise of the freedom of enterprise must be restricted by the imperative value represented by urbanistic rules. This fact is derived from the constitutional precept which says that private economic enterprise must be undertaken “within the overall frameworks laid down by this Constitution and the law and with regard for the general interest” (Article 61).
10.2. Lastly, the appellant argues that the rules before us – those that “provide authority for the administrative act of demolition” – injure the principle of the democratic state based on the rule of law enshrined by Article 2 of the Constitution.
There are two essential aspects to this argument. First, the appellant says that the principle set out in Article 2 has been injured because in the case before us the constitutional requirement of legitimate trust – without which the constitutional order of a democratic state based on the rule of law is unthinkable – has been breached; then it argues that there has been a breach of the binding parameter under which excess is prohibited and there must be proportionality in the state’s actions – a parameter which, as we know, also forms part of the essential architecture of Article 2. Let us look at these aspects.
According to the appellant’s arguments, the injury to the requirement of legitimate trust is derived from the ‘fact’ that the rule set out in Article 91 of the Burgau-Vilamoura POOC, which, as we have already seen, states that “the provisions of the POOC shall not undermine rights that had already been acquired by the date on which it came into force”, was interpreted in the way in which it was.
According to the appellant, the prohibition on building laid down by Article 20 of the POOC should in this case have been interpreted in the light of this principle of safeguarding acquired rights. This because, in its opinion, such “acquired rights” should be taken to include those concerning constructions that had already been built in those areas (the areas referred to by Article 20), whenever those constructions involve a plot of land included in a division into plots that has received valid approval, with a declaration of compatibility with the current PROT, and are covered by municipal building permits and licences to inhabit (sheet 462 of the case file). Any other understanding – the appellant ends by saying – leads to an interpretation of the rules before us which is clearly unconstitutional because it injures the principle of the protection of trust.
However, the appellant is again wrong.
According to the Court’s jurisprudence on the protection of trust (among many others, see Rulings nos. 287/90, 232/91, 269/2001 and 302/2006, all of which are available for consultation at www.tribunalconstitucional.pt), for it to be possible to see a given state action – even more so a normative action, which is that which is of interest here – as one that injures this sub-principle of the principle of the democratic state based on the rule of law, two preconditions must always be met: firstly, the state must have begun to behave in ways (or taken decisions) that are capable of arousing expectations of continuity among private individuals; secondly, such expectations must be legitimate, or founded on good reasons.
The appellant argues that in the case at hand it was given its expectations as to the exercise of its right to build by a continuous behaviour on the part of the public authorities, which was reflected: (i) in the issue of a licence to divide the land into plots; (ii) in the issue of a declaration that that licence was compatible with PROTAL; and lastly (iii) in the issue of a municipal building permit and a municipal licence to use the constructed building.
However, it so happens that the latter two acts were made after the urbanistic rule which prohibited “new constructions” in “natural cliff areas” entered into force. As we have already seen, and as the above report shows, this prohibition dates from 1999, when the Burgau Vilamoura POOC came into force; whereas the municipal building permit and the municipal licence to use the constructed building are dated 2000 and 2002 respectively.
Given that – as we have just seen under the previous point – the prohibition on building ordered by the POOC is not “arbitrary” and cannot be criticised in constitutional terms, the municipal permit and licence issued after its entry into force cannot have given the appellant any expectations which can be considered legitimate or founded on good reasons. (We should remember that under the combined provisions of Articles 103-2b and Article 3 of Executive Law no. 380/90, such permits and licences are null and void). Just as the earlier acts – the licensing of the division into plots and the declaration of compatibility with PROTAL – could not have generated such expectations, given their different effect on the possibility of building.
Finally, the appellant argues that the principle of proportionality has been breached in the case before us.
This is the argument which is at stake when the appellant says that this principle means that the power to order the demolition of a construction (which, as we have seen, Article 105 of Executive Law no. 380/99 grants to the administrative authority) should be seen as a power whose exercise is discretionary and not obligatory; and also when it says that the prohibition on building laid down by Article 20 of the POOC should be interpreted in accordance with the provisions of Article 9(2) of the same POOC. Underlying all this argumentation is the idea that, inasmuch as the demolition of a construction is a serious sacrifice for a private individual, the public authorities are obliged to exhaust the possibility of adopting alternatives which are less injurious to private persons and bodies and yet achieve the same purpose in the public interest. The appellant says that given that the state failed to fulfil its duty to adopt the most benign means (which, as we know, corresponds to the standard of “demandability”, as the second element of the principle of proportionality), the interpretation of the rules that was adopted in the decision against which the present appeal has been brought was unconstitutional.
It is clear that all this argumentation would only make sense if that which was really at stake in the case before us was the restriction of a constitutional Right, Freedom and Guarantee. If this were so, the legislative authorities should (as is well known) have chosen the most benign means of achieving the public interest served by the restriction. The thing is that – as we have already seen – none of the rules before us restricts a constitutional Right, Freedom and Guarantee of any kind. We are therefore unable to see how any duty (on the part of the legislative authorities) can be applicable to those rules as a parameter for the validity of the choice of the means for pursuing the public interest which is least onerous for private individuals.
On the grounds set out above, the Court hereby decides not to uphold the appeal, and confirms the judgement which the decision that is the object of the present appeal made in relation to the question of constitutionality.
Costs to be paid by the appellant, with the court fee set at 25 (twenty-five) units of account.
Lisbon, 9 October 2008
Maria Lúcia Amaral
Ana Maria Guerra Martins
Justice Carlos Fernandes Cadilha is in agreement with this Decision, although his absence has prevented him from signing it.
Maria Lúcia Amaral