A Legal Analysis of the Case “Construction in National Parks”

The subtitles, the underlined and boldened sentences are from the team of Transparent Mountains.
The Report is meant to answer the questions:
1. Is construction of new roads and sports facilities in national parks allowed?
2. What is meant by facilities for the purpose of management of the park and of servicing visitors?

Text of the Act and history of its adoption.
1. Art. 21, item 1 of the Protected Areas Act is adopted with the initial adoption of the Act in 1998. The text itself says:

Art. 21. In national parks are banned:
1. construction, except for tourist shelters and chalets, water intakes of potable water, water treatment facilities, and buildings for the needs of the management of the park and servicing visitors, underground communications, repairs of existing buildings and roads, sports ant other facilities;



It becomes clear from the discussions at the National Assembly at the time of voting of the law, that people’s representatives have the will to endorse a law, which will give priority to conservation activities over production and over construction activities. This becomes clear from the introductory words of the chairman of the environment commission, Lachezar Toshev, though while he does not pronounce the word “construction” explicitly, he points out that preserving nature and tourism development is priority. Sports and sports facilities are separately discussed by people’s representatives.

2. Regarding the ban on construction of new roads and sports facilities in national parks, there is reason to accept that people’s representatives have had the will to endorse such a ban. At least twice the chairman of the environment commission underlines that the purpose of the law is to prevent any new construction of buildings and facilities.

The strict conservation policy of Art. 21, item 1 is explicitly supported by deputies from the ruling party and from the opposition as well.
It becomes clear from the debate on the status of Vitosha Park and whether it should be included in the list of national or natural parks that people’s representatives have no doubt what the ban envisages, as per Art. 21, item 1 of the draft law.


3. It is interesting that in 1998 at least one of people’s representatives from the ruling majority attempts to bring up the question whether the ban in Art. 21, item 1 will cover all zones of the Park. The deputy Ilian Popov (UDF) insists also that in the law be specified which zones the ban of Art. 21 will cover – that is, it is supposed that some of the bans will not cover all zones of the national park.

People’s representatives reject the suggestion of Ilian Popov. The motives for the rejection of the suggestion of Ilian Popov are voiced by people’s representative L. Toshev- in the first place, because the law does not allow for specifying regions in the national parks. In the second place, it is expected that changes will take place in the ecosystems, which will be accounted for in the management plans of the parks, which will be accepted at highest level – by Council of Ministers. It is pointed out as well that differences exist among national parks.

4. In the year of 2000, the text of Art. 21, item 1 of Protected Areas Act (PAA) is amended. The amendment is initiated by the executive authorities. The Ministry of Environment and Water signals that there is not clarity in the interpretation of the phrase “repair of existing buildings and roads, sports and other facilities”. It points out that some interprete the law in the sense that repair pertains only to existing buildings, but not to roads, sports and other facilities. In order to make clear the interpretation of the law, an amendment is adopted, where the conjunction “and” is removed, and in its place is put coma. Thus, the text takes the following form:

Art. 21. In national parks are banned:
1. construction, except tourist shelters and chalets, water intakes of potable water, water treatment facilities, buildings and facilities for the needs of the management of parks and servicing of visitors, underground communications, repair of existing buildings, roads, sports and other facilities;

The discussions in the year of 2000 confirm the intention of people’s representatives to introduce a ban on new construction, including of sports facilities on the territory of national parks.


Bansko ski-zone’s Spatial Development Plan.

5. In the year of 2000, approximately at the same time with the amendment of Art. 21, item 1 of the PAA, the Minister of Environment and Water coordinates the Spatial Development Plan (SDP) of the area “Ski-zone with center the town of Bansko”. This happens within the framework of the procedure for environment impact assessment (EIA). The plan envisages the construction of new ski-runs and facilities. Citizens and non-governmental organisations appeal against the coordination decision, and the issue is presented to the Supreme Administrative Court, to establish whether the plan violates Art. 21, item 1 of PAA.

6. The Supreme Administrative Court rules with a final decision by its five-member commission – decision No 7214 from October 2, 2001, Adm. Case No 6309/2001. There is only one sentence in the decision pertaining to the issue of observing Art. 21, item 1. The court pronounces that
“As per Art. 21, item 1 of PAA, construction of sites for servicing visitors in the park is permissible, as well as of sports and other facilities”.
It is clear from the very beginning that the court does not differentiate between two absolutely separate cases of construction in national parks – construction of sites for servicing visitors in the park and of sports facilities. The court does not pronounce in which of the two categories the ski zone that the SDP envisages falls. The Court does not even specify the types of construction envisaged in the Plan, which should fall in the two categories. Moreover, the Court keeps silent and does not pronounce on the legal ban of new construction of sports facilities on the territory of the national park.
The above sentence, with all its unclarities, will turn eventually into a basic motive for permitting construction of new ski runs and lifts on the territory of Bansko ski-zone.


The Management Plan of Pirin National Park – 2004-2014.


7. In 2004 the Management Plan of Pirin National Park enters into force for the period 2004-2014. The Plan envisages zoning of the park and contains a description of the functional use of the zones.

In section three, part III, item 17, admissible activities in the zone for buildings and facilities are listed. In subparagraph 10 of item 17 is said that in the zone for building and facilities “construction, repairs and reconstruction of buildings is admissible”.

Further in the same plan, in section IV, named “Regimes and norms by type of activity” the conditions for construction, repair and reconstruction are listed. These conditions are listed in item 76 and 77.

Item 76 repeats the statement of subparagraph 10 of item 17, cited above. In item 77 two subparagprahs figure – 1 and 13, which relate to Art. 21, item 1. Item 77, subparagraph 1 bans new construction of

“servicing bases and facilities”

Subparagraph 13 envisages
“completing the construction of approved ski runs, facilities and sites as per the approved SDP of “Bansko Ski Zone” and the EIA for it from the year 2000.”

8. It seems to me that the Management Plan of Pirin National Park suffers from a certain controversy. Regardless of the circumstance that the plan is based on Art. 21, item 1 of the PAA, the regimes and the norms by types of activity are formulated in a way which alters the meaning of Art. 21, item 1 of PAA. I find the formulations of section III, item 17, subparagraph 10 and of section IV, item 76 contradicting Art. 21, item 1 of PAA, because it is stated in them explicitly that new construction is not forbidden. As concerns item 77 of section IV, it seems to me that two categories of construction can be identified in it – the envisaged by the SDP but not yet allowed construction on one side, and, on the other side, the envisaged by the SDP and allowed construction.
The possibility of interpreting item 77 in different ways results from the used phrase “completion of construction”, which may lead to the thought, that only construction which is begun is allowed. I did not discover such a case in legal practice.

9. In the Management Plan of Pirin National Park – 2004-2014 I found no regulations, with which “buildings and facilities for the needs of the management of the Park and for servicing visitors” in the sense of Art. 21, item 1 of PAA is specified.


The legal practice in relation to Art. 21, item 1 after entering into force of the Management Plan of Pirin National Park.


10. After entering into force of the Management Plan of Pirin National Park, the Court has had several times the opportunity to interprete Art. 21, item 1 of PAA together and jointly with the regulations of the Management Plan, including the regimes and norms for construction. The Courts have assumed that since it is envisaged in the SDP Plan and in the Management Plan of the ski zone, new construction is admissible. The Courts have not pronounced explicitly on the controversy between Art. 21, item 1 on one side and the SDP and the Management Plan on the other side. It has implicitly been accepted that the entered into force SDP and the Management Plan are capable of weighing more than the norm of Art. 21, item 1 of the PAA.

11. Meanwhile, at least once the SAC has hinted that the construction of a site, which falls not only in zone IV – zone for buildings and facilities – but in another zone too may be illegal. The justification in this case was based not on the ban by Art. 21, item 1 of PAA, but on the differences in the regimes of construction for zones III and IV. That is, the SAC has evaded justifications based directly on Art. 21, item 1 of the PAA.

12. As a whole, the legal practice does not differentiate cases when construction is:
a) for the needs of management of the park and for servicing visitors and
b) of sports facilities.


In addition, legal practice has not commented explicitly the issue whether new construction under a) above should answer simultaneously the two criteria – for meeting the needs of the administration of the park and for servicing visitors. Or, it is sufficient new construction to answer one of the listed above criteria in order that it be admissible as per Art. 21, item 1 of PAA. In at least two cases legal practice shows that planned construction is for servicing visitors – that is, it may be concluded that magistrates accept that the presence of one only criterium is a sufficient condition to accept that new construction is admissible.
13. There ought to be noted that legal practice has accepted that construction of SHPP Iliyna at Iliyna River with contracting authority “Holy Rila Monastery” is a facility “with the purpose of ensuring normal servicing of visitors”. Certain magistrates have accepted “the expansion and replacement of the existing two tow-lifts with a four-seat lift” as “a facility for servicing visitors”. In one other decision of a three-member committee of SAC as a first-instance court, it is accepted that “the replacement of the existing lift 4FIX “Banderishka polyana-Kolarski pat” with a new facility Kupelbar 6 CLD in Banderitsa zone, Bansko ski-zone is an activity related with the management of the National Park”.


14. A trend appears, where the Court prefers to investigate the eventual negative consequences of one planned investment activity, instead of interpreting the facts simply in the light of the legal bans by Art. 21, Item 1 of PAA. As a matter of fact, it must be noted that referrance to Art. 21, item 1 of PAA has always been on the pretext of some kind of procedure of assement of the impact – either EIA or appraisal of the need for EIA. That is, the basic issue has been another, different from the ban as per Art. 21, item. 1. Regardless of this, there has been no impediment to court committees to pronounce and to explain, through a note - obiter dictum – how the court considers the meaning of Art. 21, item 1 of the PAA. Nothing of the sort has happen so far…



The opinion of lawyer Kodzhabashev regarding Art. 21, item 1 of PAA


15. In the first place, I think that there can be no doubt in relation to the meaning of the ban by Art. 21, item 1 of new construction of buildings, roads, sports and other facilities. This is the specific conclusion of the review of the parliamentary discussions of the adoption of Art. 21, item 1 in 1998 and of the amendment of the same text in 2000. I make no comment regarding whether this ban is feasible in practice in view of the heightened pressure in relation to construction on the territory of Pirin National Park.

16. In the second place, I think that delegated legislation, such as Bansko ski-zone’s Spatial Development Plan and the Management Plan of Pirin NP, has to take into account the meaning of Art. 21, item1. This is my conclusion from a legal standpoint. There can be no doubt that the plans for management of national parks, which are expected to define “other conditions for activities in national parks” should comply with the bans by Art. 21. The opposite would mean to authorize management plans to regulate activities in national parks in violation of the law.

17. I think that by “for the needs of the management of the park” should be understood the needs of the administration and the security of the park – that is, those administrative functions, which the administrators of the park should perform.

18. I find most difficult for interpreting that part of Art. 21, item 1, which envisages as possible new construction “for (the needs) of servicing the visitors”. The law and the discussions at its adoption do not give an answer to these questions. At the present regulation of the Management Plan, not only new construction is forbidden in zones I, II and III, but also repair of the existing buildings and facilities.

Finding the precisest definition of the concept “visitors of the park” will depend a lot on the idea which is upheld. It is possible to look for a definition, under which “visitors of the park” will be understood solely as hiking tourists – that is, those whose activity is in complete correspondence with the conservation idea and with minimum impact on nature in the park.

19. Similar to the legal practice mentioned above (see item 12), I consider that “for the needs of the management of the park” and “for servicing visitors” are two separate criteria, based on which new construction may be allowed. Very few are the buildings, which I can imagine to be able to answer both criteria simultaneously – for example visitors center, where the office of the administration of the park will be situated. I grant that it is not impossible to defent the opposite stance as well.

I also think that what is meant by “servicing” is important – like I have pointed above in one of the cases the scope of visitors has excluded sportsmen, but it is accepted that the production of electricity by SHPP is an activity of “servicing” visitors. In this last case, the relation between “the needs of visitors” and new construction (although not investigated by the court) seems to have been rather opportunistic – visitors need some service, this service – electricity, and for the production of electricity SHPP need to be constructed….

20. I also think that if some investment proposal, even such as envisaged in the SDP falls simulataneously in two management zones – III and IV – in the park, it is not right that either the administrative body or the court should plunge into investigating its impact on nature. Such an investment proposal would be in a direct and unambiguous controversy with the ban by Art. 21, item 1 of the Management Plan.