By: Alina Moldovan
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Legal Update – January 2021
The draft of Government Decision approving the preliminary text of the Code of land development, urbanism and constructions (hereinafter referred to as the “Code”) was published on the website of the Ministry of Development, Public Works and Administration on January 10th, 2020, for constitutional consultation.
The draft of Government Decision was endorsed by all competent institutions; however, due to the changes in the Government, it was necessary to resume the endorsement procedure. Consequently, on January 21st, 2021 the inter-ministerial process of endorsement was resumed. Once all approvals are obtained, the draft shall be submitted for approval to the Parliament.
A. CULTURAL HERITAGE AND NATURAL ENVIRONMENT – RESOURCES OF NATIONAL IDENTITY
• The planning and permitting system shall acknowledge and approach the buildings and areas of cultural heritage as elements generating economic and social development and not just mere physical structures generating bureaucratic burdens.
B. PRINCIPLE INTENDED TO CLARIFY THE RELATION BETWEEN THE ELABORATION OF STRATEGIES AND PUBLIC POLICIES, THE PROCESS OF APPLICATION OF PLANS AND THE ACHIEVEMENT OF PUBLIC AND PRIVATE INVESTMENTS
• All interim stages necessary to be covered in order to implement the strategies, public policies, land development and town planning projects shall be identified and properly detailed in order to achieve the implementation objectives of public and private investments;
• A particular focus shall be placed on correlating the land development and the urbanism regulations with the environmental planning as well as with the planning in the area of prevention of waste/chemical substances generation/management.
C. GENERAL INTEREST PREVAILS OVER PRIVATE INTERESTS
• The draft provides a definition of the urbanism easements;
• It clarifies the contents and the training and implementation actions of such easements;
• It provides for mechanisms intended to ensure the public/general interest operations and projects taking into account also the environmental support capacity.
D. PRESERVATION OF LAND RESERVES ON AVERAGE AND LONG TERM
• The draft of Government Decision provides for the possibility to create “land reserve” type areas, to be developed at a much later stage.
E. PROCEDURES ARE SIMPLIFIED AND A DIFFERENT APPROACH IS MADE WITHIN THE PERMITTING OF CONSTRUCTION WORKS EXECUTION
• Repeatability, redundancies and overlapping shall be eliminated and the categories of permits shall be diversified depending on the potential works (construction, fitting out, demolition) and depending on the location or size of works (urban/rural/protected built-in areas) and/or the category of importance;
• New, simplified procedures shall be applied in special or low importance cases.
F. COHERENT AND COMPLETE APPROACH OF THE LIFESPAN OF INVESTMENTS
• The planning, design, execution and operation of a construction must be viewed as intertwined stages of the complete lifespan of an investment, from its inception to commissioning, including the operation and maintenance during operation as well as after demolition of the construction or after its operation ceases.
G. THE TYPE OF CONTRACTING IN TERMS OF THE CONSTRUCTION WORKS IS RELEVANT
• The Code must acknowledge the existence of several forms of acquisition of the design works and of execution of a construction, respectively, irrespective whether the investment is public or private and to reflect to impact that determines the various forms of acquisition in the manner in which those processes are carried out.
H. MONITORING AND CONTROL ARE MANDATORY
• Two components of the management of the entire process shall be conducted in parallel, in all respects:
i. Monitoring intended to ensure compliance with the initially set out parameters; and
ii. Control of the results in order to check compliance with those parameters.
I. UNITARY REPRESENTATION OF INTERESTS
• The interests of the investor, of the designer and of the developer must all be harmonized.
• The public interest and the responsibilities of each interested party must be clearly defined.
J. RISKS AND INSURANCE MUST BE INTEGRATED
• Defining the protection level for each type of risk in terms of the public interest;
• All economic operators are bound to undertake professional insurance policies and insurance policies must be undertaken for all constructions throughout all stages of their lifespan, in a coherent system;
• Reduce the risks resulting from natural hazards and from the impact of the investment on other existing constructions;
• Define the areas where constructions are completely forbidden or regulate these areas based on the principle of resilience enhancement, adjustment to climate changes and social and economic importance.
K. RE-DEFINE THE CATEGORIES OF PENALTIES
• The draft of Code is intended to re-define the facts that qualify as crimes or offences/misdemeanors by reference to the proportionality;
• It introduces penalties applicable to the persons in charge with fulfilling the legal obligations.
L. TAX-LIKE INSTRUMENTS SHALL BE USED TO ENHANCE THE DISCIPLINE IN CONSTRUCTIONS
• The draft of Code includes references to over-charging illegal constructions in order to discourage these practices.