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Legal Update – April 2021
Government Decision No 298 of March 10th, 2021, for the approval of the preliminary theses of the Code on land development, urbanism and constructions (hereinafter referred to as the “Code”) was published in the Official Gazette of Romania No 320 of March 30th, 2021.
The most important regulated aspects refer to:
A. DRAFTING AND APPROVAL OF THE CODE
• The draft of the Code shall be written by means of the project called “Streaming of Romanian regulations governing the land development, urbanism and constructions and the consolidation of the administrative capacity of specialized structures attached to the relevant central public institutions”, SIPOCA 50, in accordance with the Public Procurement Services Agreement No 232 of July 12th, 2019;
• Three (3) drafts shall be prepared and submitted to public discussions within six (6) theme debates and two (2) public consultations;
• The draft of the Code must be further endorsed by all the relevant public authorities, including:
• The Ministry of Finance;
• The Ministry of Foreign Affairs;
• The Ministry of the Internal Affairs and
• The Ministry of Labor and Social Protection.
• Eighty-two (82) pieces of legislation have been examined for the purposes of incorporation within the Code and those proposed to be further included are herein mentioned at the end of this summary in the List of regulations to be included in the Code.
B. CONCLUSIONS OF THE MEETINGs OF THE COMMITTEE IN CHARGE WITH ELABORATION OF THE THESES
• The Code shall address, among others, the following topics:
• the endorsement process so as to allow the investments coordination as well as the a significant reduction of the endorsing timeframe;
• replacement of the endorsement system with a sole integrated approval, using the tools offered by eguvernare, to the largest extent possible;
• imposing a set of standards regarding the qualification and number of persons within the specialized structures;
• systematization of the regulations governing the planning, design, permitting, execution, acceptance, management, rehabilitation, demolition and post-use of construction, with a clear definition of responsibilities of both public and private factors in the area;
• To create a unitary set of provisions regarding the organizational structures, the responsibilities, the regulations, the procedures and the means, generically named “system of quality in constructions”.
C. GENERAL PRINCIPLES UNDERLYING THE ELABORATION OF THE DRAFT CODE
Herein below are some of the principles that will underlie the elaboration of the Code:
1. Coherence and adequacy
The Code shall include clear and dedicated rules regarding contentious-administrative matters which are specific to land development and urbanism and shall mainly address:
• suspension of the disputed administrative acts;
• files submitted for cancelation of administrative acts;
• files submitted against unreasonable refusal to solve a claims;
• specialized court panels.
2. Clear coordination between the elaboration of public strategies and policies, the implementation and approval of plans and the performance of public and private investments
The Code shall ensure a coordinated approach in terms of land development and urbanism regulations, the environmental planning, as well as the planning in respect of waste generation/waste management/chemicals management.
3. General interest takes precedence over private interest
• definition of the urbanism easements;
• clarification of the contents as well as the manner of creation and implementation of urbanism easements.
4. Medium and long term preservation of land reserves
• possibility to establish “land reserve”-like areas for a later development stage.
5. Simpler procedures and tailored approach of the permitting process
Various categories of permits shall be provided depending on:
• types of permitted works (construction, development, demolition);
• place or size of works (urban, rural, protected built areas) and/or
• category of importance.
6. Monitoring and control are mandatory
Two elements of the entire process shall be given proper consideration throughout the lifespan of the investment, as far as their co-existence is concerned:
i. monitoring in order to make sure that the initially set parameters are observed;
ii. control of results in order to check compliance with such parameters.
7. Functions must be compatible
The Code shall include provisions regarding investments that may cause discomfort to people or may adversely prejudice the environment in general or population’s health.
8. Risks and insurance shall be integrated
The Code shall include provisions intended to mitigate the risks of natural hazards and investments’ impact on other, existing constructions or infrastructure elements which influence that impact and to define the areas whereby any construction shall be forbidden.
9. The categories of penalties are re-defined
The facts that represent crimes or offences shall be re-defined by reference to their proportionality.
The Code shall provide for penalties applicable to the persons in charge with compliance with the law.
10. Tax instruments shall be used to boost discipline in construction
The Code shall provide for additional taxes applicable to illegal constructions in order to discourage such practices.
D. PROPOSED LEGISLATIVE SOLUTIONS
1. New provisions shall be included in Book I, part IV, which shall address the specific contentious-administrative matters, as follows:
• Consequences of cancelation or invalidation of an urbanism documentation;
• Consequences of cancelation or invalidation of a building permit;
• Rules of remedy;
• Liability in urbanism and construction;
• Facts that cause prejudices;
• Consequences of suspensions of implementation of the administrative acts.
2. Book II, part II, shall include a chapter dedicated to the clear definition of the types of requirements that form the subject matter of strategic studies for definition of the design theme:
i. Public interest requirements (non-negotiable)
• They shall be set out in technical regulations and tender books;
• They shall address:
i. minimum level of protection against major risks (earthquake, fire, acts of God etc.);
ii. minimum level of content (areas, adjacent areas, circulation, outdoor areas etc.);
iii. minimum equipment (installations, equipment, finishing etc.) etc.
ii. Specific interest requirements (project-specific) – to be detailed in Book II’s chapter dedicated to constructions, with reference to the specific laws and regulations.
3. The Code shall include a section dedicated to identification and definition of roles and responsibilities of each person who takes part, whether directly or indirectly, in the process of construction:
!! The investor’s liability must be broader not only in respect of monitoring and control of processes but, in particular, in more thoroughly preparing the investment projects in the field of constructions.
E. PROPOSED STRUCTURE
The structure of the draft Code shall include parts, titles, chapters and sections and shall cover the three areas of interest:
1) Land development;
2) Urbanism and
BOOK I. LAND DEVELOPMENT AND URBANISM
PART I. GENERAL PROVISIONS ON LAND DEVELOPMENT AND URBANISM
PART II. PROVISIONS AND RULES APPLICABLE ON THE ENTIRE TERRITORY OF ROMANIA
PART III. PROPERTIES AND AREAS SUBJECT TO SPECIAL REGULATIONS
PART IV. RULES ON URBANISM OPERATIONS
PART V. RULES ON PERMITTING OF CONSTRUCTIONS AND DEMOLITION OF CONSTRUCTIONS
PART VI. CONTENTIOUS-ADMINISTRATIVE ELEMENTS SPECIFIC TO URBANISM AND CONSTRUCTION PERMITTING
BOOK II. CONSTRUCTIONS
PART I. DEFINITION OF THE AREA OF APPLICATION
PART II. PERFORMANCE CRITERIA FOR CONSTRUCTIONS
PART III. ROLES AND RESPONSIBILITIES
PART IV. STAGES AND PHASES OF THE CONSTRUCTION’S LIFESPAN IN CONSTRUCTIONS
PART V. SPECIFIC PROVISIONS REGARDING INVESTMENT OBJECTIVE’S EXECUTION
PART VI. MATERIALS, PRODUCS, EQUIPMENT, SYSTEMS, TECHNOLOGIES
FINAL AND MISCELLANEOUS PROVISIONS
The preliminary these of the Code outline the general notions for the later elaboration of the Code on land development, urbanism and constructions, which is intended to correlate, simplify, improve and reunite all regulations in the above mentioned areas as well as the specific provisions governing the related areas in one, single structure embedded in one piece of legislation.
LIST OF REGULATIONS TO BE INCLUDED IN THE CODE
1. Law No 350/2001 on land development and urbanism, as amended and supplemented from time to time;
2. Law No 50/1991 on the permitting of construction works execution, republished, as amended and supplemented from time to time;
3. Law No 10/1995 regarding the quality of constructions, republished, as amended and supplemented from time to time;
4. Law No 5/2000 for approval of the Plan of development of the national territory – Section III – Protected areas, as amended from time to time;
5. Law No 351/2001 for approval of the Plan of development of the national territory – Section IV – Network of localities, as amended and supplemented from time to time;
6. Law No 575/2001 for approval of the Plan of development of the national territory – Section V – Natural risk areas;
7. Law No 363/2006 for approval of the Plan of development of the national territory – Section I – Transport networks, as amended from time to time;
8. Law No 171/1997 for approval of the Plan of development of the national territory – Section II – Water, as amended from time to time;
9. Government emergency Ordinance No 142/2008 for approval of the Plan of development of the national territory – Section VIII – Areas with tourism resources, approved with amendment by law No 190/2009, as amended from time to time;
10. Government Decision No 907/2016 on the stages of elaboration and the standard content of the technical-economic documentations for investment objectives/projects financed from public funds, as amended and supplemented from time to time;
11. Government Decision No 766/1997 for approval of some regulations regarding the quality in constructions, as amended and supplemented from time to time;
12. Government Decision No 925/1995 for approval of the Regulation on the conduct of technical verification and expertise for projects, technical expertise of works and constructions execution and verification of the quality of works executed, as amended from time to time;
13. Government Decision No 525/1996 for approval of the General Urbanism Regulation, republished, as amended and supplemented from time to time;
14. Government Decision No 273/1994 for approval of the Regulation regarding acceptance of construction, as amended and supplemented from time to time.