The Contentious Appeal for Annulment in Urban Planning Matters: Timeliness, Standing, and the Nature of the Disputed Legal Relationship

Abstract

I – Since the subject of the contentious appeal is the resolution of the Funchal City Council that authorized the respondent private party to carry out a private construction project, following which the corresponding building permit was issued, an act alleged to contain legal violations—specifically, a violation of the Funchal Master Plan, which is sanctioned by nullity under Article 52 of Decree-Law No. 445/91 of 20 November—and given that a violation of a right of view servitude was also invoked as a defect of the contested act (cause of action), this does not remove the administrative nature of the relationship established between the City Council and the private respondent, who benefited from a construction permit under a public law (urban planning) regime. Therefore, the competent court to hear the appeal is the administrative court of the relevant district.

II – In a contentious appeal invoking defects that determine nullity and others that are causes of annulability, the issue of timeliness only arises with respect to the latter.

III – Standing is assessed in light of the specific situation alleged by the appellant and the manner in which the contested act is framed as injurious to their legal sphere (of a right or a legally protected interest), involving merely a judgment of plausibility or possibility of the alleged harm, since determining whether the legally protected right or interest invoked actually exists and whether it was truly harmed concerns the substance or merits of the appeal.

IV – Given that the contentious appellants claimed the existence of a direct, personal, and legitimate interest in the granting of the appeal, their standing must be assessed under Article 821(2) of the Administrative Code, and not, as the challenged judgment did, under Article 822.

V – Article 36(1) of the LPTA only requires that the appellant indicate, in addition to the contested act and its author (point c), the identity and residence of those interested who could be directly prejudiced by the granting of the appeal (counter-interested parties), requesting their citation (point b). Therefore, a lapse in indicating the citation of the appealed authority (not required by law) is irrelevant from a procedural standpoint if, as in the present case, it was correctly identified as the author of the contested act.