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Considerations Regarding the Draft Code of Territorial Planning, Urbanism and Construction

Considerations Regarding the Draft Code of Territorial Planning, Urbanism and Construction

Romania
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In August 2019, the Ministry of Regional Development and Public Administration (MRDPA) has organized the first consultation meeting on dysfunctionalities at the level of the normative and institutional framework in the fields of territorial planning, urbanism and construction and related fields, with the aim that the entire legislation in this matter be reorganized under the rule of a single normative act complying with the current needs of digitalization, simplification and professional responsibility.

Later on, the first visible steps were taken by Government Decision no. 298/2021, which approved the preliminary theses of the Code of Territorial Planning, Urbanism and Construction. According to the substantiation note published on the website of the General Secretariat of the Government, the aspects that were the basis of the initiative had in mind "inadvertences in the content of normative acts", "lack of clarity of norms, legislative parallelisms, contradictory norms (between laws or even within the same normative act) and the inefficiency of control mechanisms", "the extent and number of contentious situations or legal court actions", "legislative vacuum, respectively the absence of legal texts responding to specific problems encountered in administrative or investment practice".

On 13.04.2022, the Ministry for Development, Public Works and Administration (MRDPA) published the draft Code of Territorial Planning, Urbanism and Construction (the "Urbanism Code") in order for the interested persons to formulate proposals, suggestions or opinions. According to the press release of the Ministry for Development, the code aims to replace "the 10 laws in force, 30 years old, substantially amended in recent years"; more precisely, of the 10 laws in force, 5 will be eliminated and 5 will be amended and introduced in the new code (among the laws concerned, we mention, as an example, Law no. 350/2001 on territorial planning and urbanism; Law no. 50/1991 on the authorization of the performance of construction works; Law no. 10/1995 on quality in construction; Order no. 233/2016 for the approval of the Methodological Norms for the enforcement of Law no. 350/2001; Order no. 839/2009 for the approval of the Methodological Norms for the enforcement of Law No. 50/1991).

After the public consultation period, the draft Urbanism Code will be adopted by the Government and sent to the Parliament which must make a decision in the first part of 2023, as the Urbanism Code is part of the reform assumed by Romania within the National Recovery and Resilience Plan. This is because MRDPA is the beneficiary of the project „Systematization of legislation in the field of territorial planning, urbanism and construction and strengthening of administrative capacities of specialized structurers from central public institutions with responsibilities in the field” (code SIPOCA 50), financed by the Administrative Capacity Operational Program (POCA) 2014 - 2020.

1. NOVELTY ASPECTS

Without intending to make a complex presentation of the new aspects proposed by the draft Urbanism Code, we nevertheless mention some of the administrative novelties with potentially significant impact on access to information, debureaucratization and digitalization in the field of construction and urban planning:

1. Establishment of the National Territorial Observatory (NTO), in which urban plans and local urban planning regulations will be published. Also, as part of the NTO, a National Urban and Territorial Planning and Building Authorization Platform will be created, which is "a digital platform established and organized at the national level [...] and which ensures the integration of territorial planning and urbanism documentation approved at the level of local public administration authorities". This will be interconnected with the National Register of Constructions, and will constitute a database and a support for the authorities in issuing urbanism certificates, single endorsements and building permits.

According to the Ministry of Development: "If, currently, an urbanism certificate is issued in 1-2 months, through the National Digital Platform it will be possible to issue it in 5 days; likewise in the case of building permits, the period will be reduced to 15 days, compared to 1-2 months as it currently is.

2. Within the National Planning Platform, there will be a single National Counter, as a tool for mediating the relationship between applicants and the competent public administration authorities, for administrative processing of requests related to territorial planning and urbanism documentation and requests related to the authorization of construction works.

3. Creation of a National Urbanism Geo-portal, an online platform that includes all territorial planning and urbanism documentation, legally approved at the level of public administration authorities.

4. Setting-up a National Constructions Register (organized and managed by the responsible ministry in the field), a computer system established and organized at national level, which contains the database on authorized constructions (the technical construction book will be registered here and therefore also the technical project, the building permit and the reception protocol). This Register shall also include: (i) the National Buildings Register, which will contain the georeferenced database of public and private buildings that constitute the national built fund (with information regarding function, property regime and location, urbanism regime, functional and fiscal zoning, energy performance, seismic risk, fire protection, etc.); (ii) the Information Register regarding constructions’ capabilities (including information submitted by site managers during performance of construction works, information entered by the building permit holder, information from the summary of technical expertise reports, ISC control’s findings).

5. The technical construction book must be drawn up in electronic format and will be permanently connected to the databases that substantiates and manage the cadastre, the land register, the National Register of Buildings, the information being accessible to interested persons at any time during the existence of construction.

6. Establishment of Single Endorsement Commissions at national, county and municipal level. Their role is to represent a single point of contact where all the permitting authorities will express their technical opinions on the urbanism documentation and for obtaining the building permits, in order to issue a single endorsement, thus reducing the approval time.

2. DEBATABLE ASPECTS

On a different note, there have also been some critical opinions related to the new draft law. Please note that the intention to systematize urbanism and construction legislation in a unitary normative act was initially put forth in 2006, through the initiative of the State Construction Inspectorate to develop a constructions code. At that time, the draft law was not immune to criticism, one of the main problems noted then and still being discussed now, being the absence of upgraded means for ensuring quality requirements in construction (during the execution phase and on the construction site). Such critics held that the proposed regulation only perpetuates an outdated system in which the state (through the ISC) not only monopolizes the activity of constructions’ quality control but it also does it superficially (often carrying out a document compliance control and not a quality control or a control on the impact on the construction environment), inconsistently (by failure to participate in all the determinant construction phases), unprofessionally (failing to allocate a sufficient number of specialists) and pursuing a purely economic interest (by collecting control fees which in fact stand for a sale of inspection and sanctioning services to those same persons that finance such services, such persons being also the ones that get penalized).

All this while other the EU countries apply models by which this control is delegated to independent private experts and involves the participation of the most interested, skilled and demanding parties (the "Building Control Systems in Europe" study, carried out since June 2006 by the Consortium of European Building Control in the European countries of the EEA area, shows that the control activity during construction works in these countries is usually delegated by the authorities to private entities, independent inspectors or even to the investor or the constructor). Therefore, it is argued that the current draft Urbanism Code only embellishes the existing legislation, attacking the problem of bureaucracy and digitalization but avoiding a deep reform of the institutional framework, which would be imperatively necessary to overcome the existing approach which is specific to centralized economies and to advance towards the more efficient models applied for a long time in the developed European countries.

3. CONCLUSIONS

As mentioned above, the draft new code contains indeed a multitude of elements that could lead to administrative simplification and greater transparency of information, decision-making processes and the interaction between institutions and the interested public.

By Oana Albota, Partner, Bogdan Roscaniuc, Senior Associate, and Andreea Ciobanu, Senior Associate, Albota Law Firm

Albota Law Firm at a Glance

The firm: Albota Law Firm is a boutique law firm set up in May 2014. The firm was founded by Oana Albota. Before this, Oana co-ordinated, as a partner, the real estate practice of PeliFilip, which she joined from NNDKP.

The main area of practice of the law firm is real estate and construction. It has the capabilities to assist clients in all the areas connected to a real estate project: financing, real estate permitting and regulatory, corporate commercial, litigation and arbitration.

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During the last 15 years the firm’s lawyers have been involved in transactions standing as landmarks for the real estate market in Romania and in significant international construction arbitrations.

Areas of practice: The firm specialises in construction and real estate.

It is experienced in all construction sectors and in the engineering industry. It is particularly specialised in FIDIC contracts and FIDIC adjudication.

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Firm's website:

www.albota.ro