Repayment: Justified or Unjustified?

Commentary on the Judgment of the Portuguese Supreme Administrative Court of 9 July 1998, 1st Subsection of the CA, Case No. 43867

Abstract

I – The exemption from consultation with the entities required to issue opinions, referred to in paragraph 10 of Article 12 of Decree-Law No. 448/91 of 29 November (Legal Regime for Licensing Subdivision Operations and Urbanization Works), does not constitute a prohibition of such consultation.

II – The Municipal Council, as the licensing authority primarily pursuing the public interest, cannot be barred, in this matter, from obtaining from the JAE (Joint Business Authority), within its competence, the opinions or information it deems necessary for its decision, merely because the applicant has attached an opinion previously obtained from that entity to the licensing request.

III – In the situation described in the aforementioned paragraph 10, although consultation is waived, the licensing authority may always request a new opinion when justified, such as in cases where the exact terms of the consultation carried out by the applicants are unknown.

IV – In such cases, the 45-day period for the Municipal Council to decide on the subdivision licensing request is counted not from the date of receipt of the request, but from the end of the 30-day period during which the consulted entity had to respond to the consultation submitted by the licensing authority (Articles 12(6) and 13(5) of Decree-Law No. 448/91 of 29 November, as amended by Decree-Law No. 334/95 of 28 December).