Public Interest, Private Interests, and Omissions in a Legal Decision

Abstract

I – The act issued under paragraphs 1 and 2 of Article 1 of Decree-Law no. 351/93, of 7 October, whether or not concerning compatibility, does not merely declare an existing situation; rather, it embodies a new assessment, or at least a reassessment of the respective license or approval, based on an urban planning legal framework that did not exist at the time it was originally granted. Therefore, such an act is neither confirmatory, nor certificatory, nor declaratory.

II – The person who has a legitimate interest in annulling the contested act is the one who, with plausible reasoning (materially well- or poorly-founded, as determined by the submitted claims), invokes ownership of a legal right or a legally protected interest harmed by the act, deriving some benefit or advantage from the sought annulment that merits judicial protection.

III – Within the constitutionally enshrined right of property, the *jus edificandi*—the right to build—is not protected as a fundamental element of land ownership.

IV – In view of the provisions of Article 267(4) of the Constitution and Articles 8, 9, 59, and particularly 100 of the Administrative Procedure Code (CPA), the general rule is that interested parties have the right to be heard before the final decision is made, thereby allowing them meaningful participation in the administrative procedure.

V – Since the contested decision itself, nor the supporting documents, particularly the report on which it was directly based, do not contain references, facts, or circumstances reasonably indicating that prior hearing of the appellant would compromise the effective outcome of the decision or cause significant prejudice to its fundamental elements, the prior hearing of the interested party could not be waived under Article 103(9)(1)(b) of the CPA.

VI – Decree-Law no. 351/93, of 7 October, is not tainted by any organizational or substantive unconstitutionality; it does not violate the legislative reserve of the Assembly of the Republic, nor the principles of municipal autonomy, non-retroactivity of law in matters analogous to fundamental rights, or proportionality.