A new construction law at the horizon?
Daniel Vlasceanu – Partner at Vlasceanu, Ene & Partners
On 15 January 2018, a draft law (the ‘Draft Law’) was released for public consultation on the website of the Ministry of Regional Development. According to the Draft Law, it is meant to replace the currently applicable Construction Law no 50/1991.
Without listing all proposed amendments, the present article intends to highlight only the main changes primarily relevant for energy related operations.
WORKS THAT NEED TO BE AUTHORIZED
The Draft Law does not change the general types of construction works that need to be authorized. However, certain minor amendments compared to the current framework are envisaged. At present, petroleum operators apply for the ‘drilling and excavation’ permit. The Draft Law refers to authorizing the ‘drilling and equipment’ of a well; as such, on top of the existing difficult discussions with the authorities when applying for a drilling permit, we foresee the risk that authorities might ask even more details/documents before issuing such a permit. We welcome the clarification (Art 28 under the Draft Law) according to which for certain works not affecting the resistance structure or the architectural outlook there will be no need for authorization. Such works may be:
Periodical maintenance and recurrent repairs for the transport infrastructure and related installations;
Intervention, maintenance, repairs, side-tracking and deepening of the petroleum objectives as long as they do not imply opening a new drilling hole;
Repairs, maintenance, protection, conservation and thermal insulation for oil and gas pipelines, without modifying their route or purpose;
Certain works for the protection of the oil and gas wells.
AUTHORIZATION PROCEDURE (MILESTONES AND REQUIREMENTS)
Although the milestones of the current procedure are maintained, the Draft Law reflects an intend to simplify and shorten formalities.
Art 8 para 3 of the Draft Law removes the authority’s right to request supplementary documents if the said authority did not react within 10 days. Even though it may seem to increase the authorities’ accountability, we do not appreciate such pseudo sanctions as they might ultimately lead to unpractical solutions (e.g. what if the initial documentation is not complete/correct? will the authority reject the application?).
An unusual provision of the Draft Law (i.e. Art 13 para 8) sets forth that in order to issue the building permit, there must be no pending litigation related to the respective land plot/ construction. Considering the litigating Romanian business culture (i.e. abundant law-suits), we believe such a provision should be removed as it lays the foundation for abusive litigations.
The Draft Law maintains the removal of the urbanism documentation (when applying for a drilling permit) only for wells located extra-murros; per a contrario, one may interpret that such documentation will be required for intra-murros wells.
OTHER PROPOSED PROVISIONS
Even if the public character of a building/demolishing permit is stated under the current law, it is for the first time when it will be clearly stated that the building/demolishing permit must be released upon request of any interested person (Art 14 para 1 of the Draft Law).
The Draft Law introduces (under Art 40) a simplified administrative procedure (without a court of law intervention or a technical expertise) for demolishing the unauthorized constructions located on public or private property of the state or of the local authorities. The only deciding authority will be the local authority owning the land/where such construction is located. Considering the urbanistic Romanian historical background (for example, not many wells were drilled before 1989 with a building permit…), but also the need for a neutral third party’s opinion, we believe that a court of law should be the one ascertaining the (i)legality of the respective construction; after the court’s decision is obtained, the local authority may decide the measures to be taken for such a construction.
Execution of certain unauthorized types of works would no longer be qualified as a criminal offence (e.g. drilling works for petroleum wells).
Civil fines would be applied to the public authorities (and not to the public servants, as the Law 50/1991 currently provides).
The Draft Law refers to the set-up of a National Registry of Buildings (i.e. a national database, monthly updated, including all authorized buildings on the Romanian territory).
The Draft Law addresses even projects of national importance (such as BRUA) or the Neptun Deep gas production project. It is clear that the legislator intends to simplify formalities and that is without a doubt a positive change (we have faced too many times the authorities’ reluctance and too many permitting problems nurtured by the current legal framework). However, the Draft Law contains certain provisions that absolutely must be improved/even removed as they will only facilitate the appearance of other problems in practice.