Analysis of the Amendments of the Spatial Development Act

By Boyana Milcheva, Pavlina Ivanova and Nikolay Kolev from Dimitrov, Petrov & Co. review in detail the latest amendments to the Spatial Development Act

In State Gazette, issue 13 of February 7, 2017, an Act for the Amendment of the Spatial Development Act was adopted. The adopted amendments and supplements are implementing the measures envisaged in the Action Plan addressing the key areas of concern impeding the increase in investment endorsed by the Council of Ministers with Decision No. 617 of 2015 and adopted by the Council of Ministers with Decision No. 411 of 2016. The changes aim to reduce the administrative burden of the individual procedures, and at the same time strengthen the control over the activities of the municipal administrations. Existing inaccuracies and incompletenesses in the current regulations have corrected with a view to the an accurate and uniform enforcement of the law. The main amendments concern the following.

  1. Ensuring publicity and accessibility of acts

Тhe adopted amendments introduce a new obligation for the regional governors and the Minister of Regional Development and Public Works  to arrange the maintenance of public registers of the issued acts for elaboration and approval of development plans and the amendments thereto, of the issued building permits and of the construction sites put into operation. Art. 5, Para 5 of the SDA in its amended version provides that mayors of municipalities s shall arrange the maintenance of an archive of the approved spatial development plans and the amendments thereto, an archive of the issued construction papers, and public registers of all acts for elaboration and approval of spatial development plans and the amendments there to, of the issued building permits and the construction sites put into operation., It was not explicitly specified that these registers  have to be public until the amendment of Art. 5, Para. 5 SPA. The legislator has not provided an implementation term, nor a sanction in case of non-compliance, which makes it doubtful whether the obligation thus provided would actually be implemented or these texts would remain only wishful thinking.

  1. Drafting, approval and amendment of spatial development plans

The legal regime relating to spatial planning has undergone significant development, related to the amendment and supplement of the existing regulations. Some of the changes are related to the procedure of the so-called urban land consolidation.

An essential part of the procedure for the drafting and approval of spatial development plans under Art. 16 SDA and a condition for the conformity with the law of those plans is the act of proving the increased property value as a result from the spatial planning. This is carried out by a decision of a special commission appointed by the municipality mayor, indicating the market value of the properties before and after the spatial planning. Pursuant to current regulation, the decisions of the commissions were subject to individual appeal, which excessively delayed and hampered the procedure for approval of the plans under Art. 16 of SDA. With the supplement of Art. 16, Para 4 it is provided that the decision of the commission should be announced together with the draft of the Detailed Development Plan and the appeal against the decision should be filed within the procedure of appealing of the act for approval of the detailed development plan.

Next, in the provision of Art. 16 there is a new Para 5, pursuant to which unification or division of land properties is allowed with a view to satisfying the actual needs of their owners and a more efficient development of the territory, rather than blind adherence to procedures. Under the new rule, it is allowed: (a) landed properties that do not meet the requirements for minimum size of face and surface according to the development zone in which they fall, to merge into one or more new regulated properties if owned by the same persons, where the competent authority decides solely whether the individual properties shall merged together is provided entirely to the and the latter has no obligation to require the owners’ consent; B) merging into a newly formed regulated property landed properties owned by the same persons upon the request of the owners, and dividing a regulated property into two or more newly formed regulated properties; C) to form a co-owned regulated property for two or more landed properties, owned by different persons, on the basis of a joint application of the owners with notarized signatures, defining the ideal parts of the co-owners.

There is an important revision in the provision of Art. 16 Para 6 (previous Para 5) SDA, which aims to clarify the moment of transfer of ownership in the regulated properties. The new revision underlines that the ownership of newly-formed properties shall be acquired from the moment the plan’s entry into force and the order of the mayor only seeks to accurately and clearly identify the property on the base of which the change is reflected in the Property Register at the Registry Agency. It is also provided that a copy of the enforced plan shall be sent to the Geodesy, Cartography and Cadastre Agency for ex officio entry in the cadastre. With the adopted amendments, the rules of Art. 16 SDA were explicitly introduced in the regime of spatial planning of residential complexes through the new Para 8 of Art. 22 SDA. The latter provides that with the project for restructuring of residential complexes the rules of Art. 16 SDA can apply and to assign equivalent regulated properties for all the properties restored under the restitution laws in compliance with Art. 22, Para 6 SDA and the rules of Art. 16 SDA without affecting the newly-formed regulated properties of existing buildings, determined by the rules of Art. 22, Para 7 SDA. If that proves to be impossible, the remaining undeveloped part of the sections, including land plots for which no construction can be envisaged pursuant to Art. 22, Para 6 SDA, is regulated as green areas for wide public use, and the owners of restituted properties are compensated with equivalent regulated properties at the expense of other municipal properties within or outside the scope of the plan.

The procedure for appealing the plans under Art. 16 SDA has undergone a certain change too. With the newly introduced second sentence of Art. 218, Para 3 of SDA when an administrative act, approving a detailed development plan based on Art. 16, is disputed the subject of the lawsuit becomes the entire detailed development plan, and all appeals are dealt with in a single court proceedings. Thus, in practice, the plan under Art. 16 shall enter into force only after the dispute with regard to every single appeal is resolved by a final judgement. It is questionable whether this rule shall apply with respect to prior proceedings with the indicated subject for which there is a final judgement – a ruling which specifies the subject of the case under Art. 218, Para 3 of SDA.

Certain facilitations have been adopted in the procedure on elaboration of detailed development plans by introducing a shorter term for permits under Art. 124a, Para 5 SDA, which the authorities under Art. 124a, Para 2 of SPA should provide within 14 days of receipt of the request for authorization. There is facilitation also with regard to plans that are in compliance with the provisions of a master plan, approved in compliance with the Environmental Protection Act, Biological Diversity Act and the Cultural Heritage Act, as well as for other plans pursuant to the new Art. 125, Para 8 SDA. Аpplying the requirements under Art. 125, Para 6 and 7 would not be necessary for the detailed development plans referred to above pursuant to the new provision of Art. 125, Para 8 SDA.

In addition, terms for implementation of the individual procedures have been provided in the procedure for adoption of detailed development plans, which is a novelty.  Thus, the elaborated project for a detailed development plan shall be communicated by the municipality to the parties concerned by means of a notification, which will be sent for promulgation in the State Gazette within 10 days from the receipt of the project at the municipal administration (Art. 128, Para 1 SDA). The notification should also be available at the designated for the purpose places in the municipality and on the web page of the municipality within 10-days from its promulgation in the State Gazette (Art. 128, Para 2 SDA).

In cases, when the notification is not promulgated in the State Gazette, it should be communicated to the parties concerned within one month from receiving the project in the municipal administration (Art. 128, Para 3 SDA).

New time frames are also provided in the hypothesis, when at the discretion of the chief architect of the municipality, the project for detailed development plan is examined in view of setting it in compliance with the regulatory requirements by the municipality expert council prior to its announcement. According to the changes in this case the parties concerned are notified in writing within 10 days from the receipt of the plan by the municipal administration, where the examination by the municipality expert council is completed within one month from its receipt in the municipal administration. (Art. 128, Para 8 SDA).

A new term for publication of the approved detailed development plans on the web page of the approving authority is provided, which is three days from their approval (Art. 129, Para 5 SDA).

Тhe new provision of Art. 134a SDA introduces in the procedure for amendment of development plans the incompleteness or error in cadastral maps, that served as a basis for elaboration of the detailed development plan, as another ground for amendment of  detailed development plans, which have entered into force, are In these cases, the parties concerned will be able to request for its amendment under the general procedure after the amendments to the cadastral map have  entered into force or after the amendment of the cadastral map, executed on the grounds of an final judgment in a substantive law dispute. Where a plan amendment is required under Art. 16 SDA due to incompleteness or error in the cadastral map used as a basis for its elaboration, there is no need to carry out a preliminary procedure for amendment of the cadastral map. In these cases, the mayor of the municipality shall have one month from being presented by the parties concerned with a court decision under Art. 54, Para 2 of the Cadastre and Property Register Act or a combined scheme issued by the Geodesy, Cartography and Cadastre Department evidencing an incompleteness or error in the cadastral map that served as the basis for elaboration of the plan, to assign the elaboration of a draft amendment.  This amendment shall determine equivalent regulated properties for all the properties affected by the incompleteness or the error, in compliance with the rules of Art. 16 SDA, without prejudice to newly formed owners’ properties, that are not affected by the incompleteness or error.  In case this is not possible other regulated properties are defined with the order under Art. 16, Para 6 SDA at the expense of other municipal properties in the range of the plan and/or outside of it. An opportunity is also provided for not amending the plan under Art. 16 due to incompleteness of error in the cadastral map – this will be possible if the parties concerned agree to receive or pay a compensation determined by a decision of the commission under Art. 210, or if they conclude an agreement settling their relations.

Under § 57 from SR of AASDA the commenced elaboration and approval procedures of the development plans and amendments thereto until the entry into force of the law will be completed according to the provisions of the new law. A commenced elaboration and approval procedure of the development plans or amendments thereto shall be deemed the date of admission (authorization) or assignment of the elaboration of the project concerned.

  • Investment design

One of the major amendments in investment design is related to the dropping out of the figure of the leading designer. The latter was introduced with the amendments to SDA from the end of 2015, but practice has shown that this figure is redundant and leading to more negative than positive consequences. The related sanctions under Art. 232c SDA (repealed) for coordination performed by the leading designer of a design part that is wholly or partly incompatible with another design part proved to be disproportionate. The sanction amounting from BGN 5,000 to BGN 20,000 was provided solely for the leading designers, with the result that ever fewer persons agreed to act as such. So, a bit more than a year after it was introduced, the figure of the leading designer and the associated sanctions have been canceled again. After the amendment, the coordination will be carried out pursuant to the previous rule – with the signatures of the designers of all remaining parts and the signature of the assignor (Art. 139, Para 3 SDA).

The new amendments in investment design provide that the coordination of the conceptual investment projects is carried out by the chief architect of the municipality based on a preliminary compliance assessment; Art. 141, Para 8 SDA also provides for shorter period for coordination, respectively refusal to coordinate conceptual investment projects when the preliminary compliance assessment has been prepared as a comprehensive report, compiled by a registered consultancy company, unrelated to the designer – obligatory for construction works of first and second category, and for construction works of a lower category – at the discretion of the assignor. A supplement to Art. 142, Para 2 SDA was introduced, according to which each part of the investment projects bears the number of the construction permit in connection to which they are approved.

To facilitate the procedures and gradually switch towards acceptance and archiving of documents in electronic form a requirement has been introduced for investment projects to be presented in two copies – on paper and in electronic form (Art. 144, Para 1, item 3 SDA). This step will greatly facilitate the storage and accessibility to construction documents. The digital recording of investment projects and the documents and data thereto will be further regulated in a regulation, that shall be aligned with the law within 6 months from its entry into force. By the entry into force of the amendment and the supplement to the regulation, the previous rules shall apply. In order to comply with this requirement an amendment to Ordinance No. 4 of May 21,2001 regarding the scope and content of investment projects is stipulated.

In addition, to speed up the procedure of issuing a building permit for the construction of national sites, sites of national significance or municipal sites of primary importance there is a new provision adopted, pursuant to which, when coordinating and approving investment projects there is no need to submit a document of ownership, but only documents certifying that the expropriation proceedings under the State Property Act and the Municipal Property Act have been completed (Art. 144, Para 6 SDA).

Several amendments are provided for a clearer differentiation of responsibilities in the approval and coordination of technical and operational investment projects. First, it is stated that such projects are coordinated and approved by the authorities under Art. 145, Para 1 SDA. There is also a change in the legal definition for the coordination of the projects under Art. 145, Para 2, consisting in the verification of the compliance of the projects with the provisions of the detailed development plan and the rules and regulations for deployment of the construction and the development indicators.

Under § 58 of the Transitional and Final Provisions (TFP) of Act for Amendment to the Spatial Planning Act (AASDA) the initiated proceedings for approval of investment projects and issuance of building permits until the entry into force of the act shall be completed pursuant to the current regulations. Proceedings for approval of an investment project and issuance of building permit are considered to be initiated with the submission of an investment project for approval by the competent authority.

  1. Licensing and starting of construction

Certain amendments and supplements pertaining to construction licensing are adopted in the legal regime as well. First, the amendment in Art. 148, Para 2 SDA abolishes the possibility for the chief architect of the region to issue construction permits in cities with regional division by decision of the municipal council. According to the adopted amendments, construction permits in such settlements will be issued solely by the chief architect of the municipality. With the revocation of Art. 148, Para 9, item 3 SDA, it is no longer required for the construction permit to cover the measures for selective separation of waste which is disposed of during construction and installation works and the activities related to its destruction and subsequent utilization, including recycling.

Construction process is additionally facilitated by the new Art. 156b SDA, according to which a Safety and Health Plan and a Construction Waste Management Plan should be presented just before the opening of the construction site. Hitherto, the said plans constituted separate parts of the investment projects, and after the amendment of Ordinance No. 4 of May 21,2001 on the scope and contents of investment projects those plans are expected to fall outside the scope of investment projects. There are new provisions regarding the procedure and conditions for approval of the specified plans. In the transitional and final provisions of the act the respective amendments in the Waste Management Act are adopted. The amendment in Art. 157, Para 2 SDA provides for additional documents for the opening of the construction site and determining of a construction line and level, as well as for certifying of the order book to be done after the assignor’s presenting of an approved construction waste management plan, an approved safety and health plan, a construction agreement with a developer registered with the Central Professional Register of Constructors, as well as an author’s supervision contract with the designer. It is provided for the assignor to be liable for commencement of construction works without any author’s supervision contract regarding the site (Art. 161, Para 4, item 5).

Additional rules are adopted to facilitate the procedure for issuance of a protocol for opening of a construction site and determining of the construction line and level. According to these rules, a request should be filed with the municipality within seven days before the date of issuance of the protocol (Art. 157, Para 5 SDA). To avoid blocking of the construction process, it is explicitly provided that no-show of a municipal clerk shall not prevent the issuing of the protocol (Art. 157, Para 6 SDA). In case of no-show of the municipal clerk, he shall bear administrative punitive liability (Art. 232, Para 1, item 9 SDA).

Another important change is introduced by the amendment to Art. 177, Para 3 SDA, according to which the commissioning of fourth and fifth category constructions is based on a commissioning certificate issued by the authority which has issued the construction permit, subject to the conditions and procedure determined in the ordinance under Art. 177, Para 2 SDA. Hitherto, Ordinance No. 2 of July 31, 2003 on the commissioning of constructions in the Republic of Bulgaria and minimum guarantee terms for performed construction and installation works, facilities and construction sites was applied only with respect to permitting the use of first, second and third category constructions, but after the amendment it is expected to provide for a commissioning procedure for fourth and fifth category constructions as well.

The amendments in Art. 153, Para 2 SDA provide for a change in the term within which construction should be carried out before the construction permit loses its legal effect. Thus, a construction permit that has entered into force will lose its legal effect if within 5 years from commencement of the construction the rough construction is not completed, including the roof of the buildings, in contrast to the former regime according to which the construction permit would lose legal effect if the rough construction is not completed within 5 years from the permit’s entry into force. Besides, the amendments provide for extension of the term for construction of elements of the technical infrastructure, first and second category constructions, national sites, sites of national importance and sites of primary municipal importance, with respect to which the construction permit will lose legal effect if within 10 years from commencement of the construction the rough construction, including the roof of the buildings, is not completed.

For the sake of clarity with respect to the revalidation procedure of a construction permit which has lost its legal effect, a few amendments and supplements in the existing provision are envisaged. First, a shorter term is provided for revalidation of construction permits which have lost legal effect. Pursuant to Art. 153, Para 4 SDA, revalidation of the construction permit may be requested from the assignor of the construction within three months from expiry of the respective term under Art. 153, Para 2 SDA. In this regard, it is explicitly stipulated that revalidation of the construction permit shall be carried out by the issuing authority within 14 days as of filing the application.

It is explicitly stipulated that revalidation of the construction permit will be an administrative service which can be only performed a once – either for renewal of the term for commencement of the construction or for renewal of the term for completion of the construction (Art. 153, Para 5 SDA). Revalidation will be marked with a note on all copies of the issued construction permit. In the cases under Art. 153, Para 2, item 1 SDA, before revalidation of the construction permit an ex officio inspection should be carried out to establish compliance with the detailed development plan, as well as with the requirements of administrative acts in force under the Environment Protection Act, the Biological Diversity Act, the Cultural Heritage Act or another special act, which depending on the type and size of the construction are a prerequisite for permitting the construction (Art. 153, Para 7 SDA). The revalidated construction permit loses its validity after expiry of the term for which it is revalidated if the construction has not been commenced or respectively completed, and the approved investment project loses its legal effect if the construction permit is not revalidated or if the revalidated construction permit has lost its legal effect (Art. 153, Para 9 and 10 SDA).

The new Para 6 of Art. 154 SDA specifies the procedure and terms for approval of amendments in the approved investment project within the range of substantial deviations under Art. 154, Para 2, item 5-8 SDA.

  1. Other amendments

Changes are adopted in connection with the rules regarding the construction of fences around land plots. First, the change in Art. 48, Para 9 SDA stipulates that only for the construction of fences in deviation of the requirements under Art. 48, Para 5 SDA (pursuant to which fences should be at the height of 2.2 m above the adjacent land) and under Art. 48, Para 7 SDA (pursuant to which the solid part of the fence towards the street should be up to 0.6 m) a permit is  from the chief architect of the municipality is needed based on an individual architectural design in compliance with the designation of the regulated land plot and with a view to ensuring architectural uniformity. The said requirement shall no longer apply with respect to fences under Art. 48, Para 3 and 4 SDA. With regard to fences under Art. 48, Para 9 SDA, a requirement is introduced for approval of investment projects for issuance of a construction permit (Art. 147, Para 1, item 7 SDA). At the same time, according to a newly adopted restriction, in restructured residential complexes, resorts, touristic and other settlements the regulated land plots may be surrounded along the regulatory lines by living fences or transparent fences up to 60 cm high (Art. 48, Para. 11 SDA). The change in Art. 48, Para. 12 SDA provides that by proposal of the mayor of the municipality and by decision of the Municipal Council adopted with a majority of two-thirds of the members, a temporary prohibition may be issued for surrounding of land plots in territories which are designed according to a general or detailed development plan for the construction of a first-level street network, for the subway, for tram or railway lines, for objects of the green system and for waste treatment facilities. The prohibition may be imposed a once for a term not exceeding three years.

For enhancing the effectiveness of investments, utilizing the infrastructure capacity and achieving compliance with the ecological directives, a newly adopted provision requires that owners of built-in real estates shall join the constructed water supply and sewage networks and facilities (Art. 84, Para 4 SDA). A new Para 2 of Art. 208 SDA is created to regulate the commencement of expropriation proceedings under the State Property Act and the Municipal Property Act with respect to real estates defined as public state property or public municipal property pursuant to detailed development plans. Although it does not directly contradict Interpretative Decision No. 4 of November 2, 2016 of SAC under commercial case No. 6/2015, pursuant to which the terms for commencement of expropriation procedures are preclusive and after their expiry the possibility for expropriation pursuant to the State Property Act and the Municipal Property Act is precluded, the new Para 2 de facto admits commencement of expropriation procedures even after expiry of the respective preclusive terms. In such cases, upon filing an application for amendment of the detailed development plan on the grounds of Art. 134, Para 2, item 1 SDA, the expropriation procedures will be suspended until entry into force of the act under the request for amendment of the plan for the respective property. The proceedings for amendment of the detailed development plan will be terminated if the parties enter into an agreement for continuing the expropriation proceedings.

For the sake of clarity and for the avoidance of doubt in Art. 215, Para 7 SDA, it is explicitly specified in the procedure for appealing of individual administrative acts that court decisions are final with regard to appeals or objections against individual administrative acts for approval or amendment of a detailed development plan for sites of national importance and for municipal sites of primary importance, for approval of complex projects for investment initiative for sites of national importance and for municipal sites of primary importance  and for authorizing the construction of sites of national importance and municipal sites of primary importance, as well as the refusals for issuance of such acts. The said specification is substantial, as until the amendment it was assumed by case law that Art. 215, Para 7 SDA excludes cassation appeal of court decisions issued with regard to appeals or objections against all acts for approval of detailed development plans, but not only those pertaining to the specified sites.

The administrative punitive provisions of the act introduce a sanction to be imposed on officials in case of missing deadlines for issuing decisions with regard to requests for permission, proceeding and approval of development plans and their amendments, for coordination and approval of investment projects and issuance of construction permits (Art. 232, Para 1, item 5 SDA).

Another sanction is introduced for officials in case of failure to timely issue a decision with regard to a request for commissioning (Art. 232, Para 1, item 10 SDA).