Commentary on the Supreme Administrative Court Ruling of 5 June 2001, Appeal No. 47,514

Abstract

I – The failure to submit the case to the Public Prosecutor prior to the judgment, under the terms of paragraph 2 of Article 72 of the LPTA, constitutes a secondary procedural nullity, as it affects the examination and decision of the case, leading to the annulment of the act in which it occurred and of all subsequent stages that are entirely dependent on it (Articles 201(1) and (2) of the CPC, applicable here by virtue of Articles 1 and 102 of the LPTA).

II – However, such nullity is not ex officio cognizable by the court and must be raised either at the act itself if the party is present, or within ten days from the day on which, after the nullity occurred, the party intervenes in any act carried out in the proceedings or is notified of any procedural term. In the latter case, the ten-day period applies only when it can be presumed that the party then became aware of the nullity or could have become aware of it with due diligence; otherwise, it will be considered cured due to failure to raise it in a timely manner (Articles 202, 205(1), and 153 of the CPC).

III – The State and other public legal entities are obliged to compensate private individuals who, in the general interest, have been imposed special and abnormal burdens or suffered damages through legal administrative acts or lawful material acts (Article 9(1) of Decree-Law No. 48,051 of 21 November 1967).

IV – Administrative acts granting licenses that violate the provisions of a municipal land-use plan or an in-force subdivision permit are null and void, and in such cases, the municipality is obliged to compensate the interested parties for any resulting damages (Article 52(2)(b) and (5) of Decree-Law No. 445/91 of 20 November, as amended by Decree-Law No. 250/94 of 15 October).

V – However, for such liability to exist, there must be an adequate causal link between the damages suffered and the actions of the municipal officials who performed the acts declared null.

VI – Such a causal link, as well as the obligation to compensate, exists when the null licenses are attributable to the conscious and culpable conduct of the municipal officials, i.e., when they, through intent or mere negligence, authorize works they know or should know violate a valid and effective urban plan or an in-force subdivision permit.

VII – Conversely, no such causal link exists if the null license results from the conduct of the applicant who misled the municipal officials by presenting the declaration of responsibility referred to in Article 6 of Decree-Law No. 445/91, as amended by Decree-Law No. 250/94, and other procedural documents, giving the impression that the license was lawful, when in fact it violated the rules of the Detailed Plan and the subdivision permit in force.