By: Alina Güler
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Renewable Energy vs Red Tape
With the new year comes an apparent relaxation in the permitting regime for renewable energy projects. “Apparent” is the key word here because, in this case too, the Romanian author of the law persists in doing half the job properly.
More precisely, the well-worn Law 50/1991 on the authorization of construction works was amended – again – in terms of the authorization of renewable energy projects, by Law 21/2023, according to which the construction/demolishing permit may be issued in the absence of a prior elaboration, endorsement and approval of a land planning document and/or an urban planning document for investment objectives specific to the production of electricity from renewable sources: solar, wind, biomass, biofuel and biogas energy production capacities, electricity storage units, transformer stations or other similar systems that may be placed on agricultural lands located outside the built-in area of localities, with a maximum surface area of 50 ha, included in the quality categories III, IV and V, destined to be used as arable lands, pastures, vineyards and orchards, as well as on land reclamation plots located outside the built-in area of localities.
Anyone who has dealt with the cumbersome permitting process, is well aware that Law 50/1991 must be construed in conjunction with the provisions of Law 350/2001 on land development and urbanism, a law that has never been amended; hence, building permits are issued directly for areas for which there are regulations regarding the legal, economic and technical regime of buildings, contained in the Local Planning Regulations – L.P.R., for the General Urbanism Plan, and the areas for which a certain protection or prohibition regime has been established, which are insufficiently covered by the General Urbanism Plan, will be highlighted/delimited in the General Urbanism Plan for the purpose of further detailing via the zonal urbanism plans.
However, it is common knowledge that the general urbanism plans are either expired or outdated due to their rudimentary way of regulating things. The zonal urbanism plan serves not only to include the land within the built-in area of the locality, but it is intended to satisfy the need to define a building project within a plot.
In amending Law 50/1991 and Law 18/1990, the author of the law allows such projects to be developed outside the built-in area of localities, conditional upon their permanent or as appropriate, temporary removal from the agricultural circuit.
Experience tells us that, in terms of removal of lands from the agricultural circuit, the ordeal that the Ministry of Agriculture has forced investors to go through caused them to prefer the more difficult yet safer route of bringing land into the urban environment and then removing it from the agricultural circuit via the building permit.
Although the Ministry of Agriculture has, in Law 350/2001, made the urbanism plan elaboration conditional on obtaining an opinion on the quality class of the land, the mechanism for bringing land into the urban area worked. It is worth outlining that the major bottleneck was precisely the procedure for obtaining the quality class opinion, which fell under the scope of competence of the Ministry of Agriculture.
At present, the agricultural directorates and the Ministry of Agriculture are supposed to authorize the removal from the agricultural circuit of lands located outside the built-in area of localities no later than 45 days, after which there is tacit approval, as per the amendments to Law 18/1990. But there is a trap here, because tacit approval puts the investor before the court of law and the local authority will refuse to issue a building permit based on a tacit agreement not confirmed by the court.
Given these foreseeable shortcomings, it is impossible to determine the real benefit, if any at all, of the ambiguous approach of the law author. In our opinion, the real benefit would have been to eliminate the obligation to obtain the land quality class opinion from the procedure for drawing up and approving the urban planning documents.
Last but not least, investors are also seeking to bring land into the urban area because they want to benefit of a simplified procedure for the transfer of ownership therein, as well; more specifically, the sale of land located in the urban area of localities is not subject to excessive restrictive conditions laid down in Law 17/2014 on certain measures regulating the sale of agricultural land located outside the urban area and amending Law 268/2001 on the privatization of companies managing public and private state-owned land for agricultural use and the establishment of the State Land Agency.
Consequently, a reasonably question that arises is whether the Romanian author of the law has really dismantled the barbed wire fence preventing the investments in renewable energy or not. The answer is rather negative since the investors in renewable energy projects are rather left to muddle through the legislative and administrative thicket as best as they can.
Article appeared in juridice.ro