Unlawful building decision: revocation or amendment under section 68 AVG

Section 68 concerns decisions that are no longer subject to an ordinary appeal. An open legal remedy must therefore be distinguished from a later ex officio correction. The article on appealing a building decision covers that earlier situation.

Subsection 1 generally requires an application by a party seeking to amend a final decision to be rejected as res judicata unless the authority finds grounds for action under subsections 2 to 4. The provision does not create a general right to a new merits decision.

For a building project, the operative part of the decision matters. An alleged technical error, a later change to the plans or a dispute about execution may belong to another procedure depending on the objective.

Under section 68(2), a decision from which nobody has acquired a right may be revoked or amended by the authority that issued it. The same can occur through supervision by the competent superior authority.

The assessment therefore starts with the legal effect of the specific decision. It must be established whether a right was granted, confirmed or already used by a person. Calling a document a building permit does not answer that question for every procedural stage.

The provision does not give the authority a free power to change every inconvenient or later unwanted decision. Jurisdiction, the content of the decision and the absence of an acquired right must be traceable from the file.

Under section 68(3), other decisions may be amended in the public interest only to the extent necessary and unavoidable to remove conditions endangering human life or health or to prevent serious economic harm.

The competent authority is the authority that issued the decision at last instance or the competent superior authority. This is substantially narrower than a general later review of a building permit.

Section 68(3) also requires acquired rights to be protected as far as possible. For building owners, neighbours and other parties, the concrete legal position affected and the reason why the correction remains necessary must therefore be identified.

Section 68(4) permits the competent superior authority to declare a decision void through supervision where it was issued by an incompetent authority or an improperly composed collegiate authority, would produce a criminal-law result, is factually impossible to implement or suffers from an error that legislation expressly treats as void.

These grounds must be assessed separately. An ordinary substantive error, an unattractive planning solution or a later change in interests does not by itself establish nullity.

For the ground concerning an incompetent authority, subsection 5 imposes a time limit. After three years from the point referred to in section 63(5), a declaration of nullity on that ground is no longer available. The relevant starting point must be established from the file.