On 10 July 2024, the Supreme Court ruled that starting clearance issued previously does not prevent a local building committee from refusing to issue a final report if it subsequently transpires that there is insufficient access for emergency service vehicles. Lawyer Peter Wahlbäck and junior lawyer Emma Gustavsson have commented on the judgment and its significance for future construction projects.
Summary
In case T 2169-23, "Startbeskedet i Barkarby" [The Starting Clearance in Barkarby], the Supreme Court clarified that the issue of starting clearance is no guarantee that a final report will be issued, even if there are no clear deviations from the original basis for the starting clearance.
Background
A developer received a building permit and starting clearance for an apartment building in Barkarby. During the final stage of the construction process, after several interim final reports had been issued, attention was drawn to a problem regarding access for the emergency services. One of the developer's planned evacuation routes involved the use of the emergency services' fire engine (ladder truck) via the inner courtyard. However, that solution presupposed that the emergency services' response time would be under 10 minutes. A test run after the buildings had been completed showed that it was difficult for the vehicle to reach the parking area in the inner courtyard within the prescribed time. The building committee therefore concluded that there was insufficient access and refused to issue a final report due to fire protection defects.
The decision was appealed by the developer, who was initially successful at both the County Administrative Board and the Land and Environment Court. However, the Land and Environment Court of Appeal upheld the committee's decision to refuse to issue the final report. Because the issue was considered important for the application of the law, the Land and Environment Court of Appeal allowed the judgment to be appealed before the Supreme Court, which the developer chose to do.
The Supreme Court judgment
The Supreme Court initially considered that starting clearance did not entail a final position on the technical functional requirements. The court noted that starting clearance does not prevent the building committee from subsequently refusing to issue a final report if it transpires that the technical functional requirements cannot be met when the measure has been completed. This applies even if there are no clear deviations from the original basis for the starting clearance. With regard to the question of whether there were grounds for refusing to issue a final report, the Supreme Court's assessment did not differ from that of the Land and Environment Court of Appeal.
Analysis
The Supreme Court's ruling shows that the building committee's assessment of the technical functional requirements prior to the starting clearance is not subject to "negativ rättskraft" [negative legal force]. That means that the committee is able to issue a new assessment of whether a final report should be issued on the basis of the investigation available at that time in accordance with the assessment criteria set out in chapter 10, section 34 PBL [the Planning and Building Act].
According to our interpretation, in order for that new assessment to justify a subsequent decision to refuse a final report, there must also be grounds for the committee to intervene in accordance with chapter 11 PBL by prohibiting the use of the building for imperative security reasons. Such a decision is fully exempt from the principle of the immutability of favourable administrative rulings. Refusing to issue a final report in such a situation appears to be a natural response, particularly compared to the alternative of first issuing a final report and then making a decision prohibiting use.
Although the judgment may slightly affect the predictability of the construction process, we consider that in practice it will probably be of limited significance. In order to avoid similar situations to the one arising in this case, it is crucial to ensure at an early stage of the construction process that the fire safety regulations can be met and that there are satisfactory margins for the emergency services' vehicles to reach the parking site.
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