March 29, 2021

Amendments to the Spatial Development Act

Amendments to the Spatial Development Act (SDA) were promulgated in the State Gazette 16/23.02.2021, some of which have aroused lively debate among the professional community. Certain controversial revisions have been criticized and partially vetoed by the president, but the National Assembly has lifted the veto.

The most significant amendments concern the following:

I. Administrative services

1. As part of implementing measures intended to standardize the documents required upon the provision of administrative services under SDA, new regulation is to be adopted by the Council of Ministers within a year. It is meant to regulate the general rules for the organisation of the administrative services, as well as the approval of sample documents for all administrative services. The idea is to eliminate the vicious practice where municipalities set different rules and procedures at local level, including the documents required for identical administrative services.

2. A new Unified Spatial DevelopmentPublic Register is to be developed and maintained on the website of the Ministry of Regional Development and Public Works. This is another attempt to create a unified database containing information about all acts issued by the Ministry of Regional Development and Public Works, the Directorate for National Construction Control (DNCC), the regional and municipal administrations. Currently, registers are kept only within the respective administrative structure, and what is more these registers are often kept on paper, they are not publicly accessible, and it is almost impossible for citizens to obtain information. By creating the new Unified Spatial Development Public Register, the administrative authorities will be able to establish ex officio all the circumstances entered in the register for the needs of the relevant proceedings. This is intended to expedite the processing of the case by eliminating the constant need for additional documents and information from persons using certain administrative services.

The regulation setting out the terms and conditions for the register functioning shall be adopted by the Council of Ministers within a year.

3. Further, with the provision of the new Art. 5c SDA, the legislator seeks to discipline the administrative authorities and to prevent the practice where these authorities endlessly request additional information, documents, etc. from the persons using services. According to the new regulation, the administrative authorities will have the right to demand correction of irregularities or submission of additional documents just once, providing candidates with a 14-day correction period.

II. Spatial territorial development

1. By its Decision No. 14 of 15.10.2020 the Constitutional Court declared unconstitutional the provision of Art. 215, paragraph 6 SDA, according to which the general development plans and the amendments thereto are not subject to appeal. The approved amendments to SDA have filled the legislative gap regarding the procedure and methods for appealing general development plans. Under the amendments to SDA, the general development plans can be appealed within 14 days from the promulgation of the act for their approval or acceptance in the State Gazette.

Amendments introduced also specify the parties that may be interested in the procedure for adopting (or amending) general development plans and may appeal against them, with their number being quite limited. According to the new regulation, these are the owners of lots directly affected by the provisions of the new regulation – lots projected by the plans for construction of works constituting public state or municipal property, or such where restrictions have been established for the purpose of public interests protection – environmental and human health protection, protection of agricultural, forest and protected territories and protected areas and zones protection. All owners other than those specified above shall not be considered interested parties and may not appeal against general development plans. It is debatable whether narrowing the circle of persons entitled to appeal does not actually violate the right enshrined in the Constitution allowing appeal against administrative acts.

The appeal procedure shall not put on hold the execution of the development plan. Based on the adopted general development plan, procedures may be initiated regarding development of detailed plans, issuance of construction permits, etc., regardless of whether this plan has been appealed against or not.

2. Following the amendments, the municipality mayor’s orders on preparing a draft modification of the detailed development plan (“DDP”) shall become invalid provided that no draft modifications of the plan has been submitted within a year from the date on which orders become effective. With the adoption of the amendments, the same time frame shall apply to pending proceedings where there is an order issued on preparing a draft modification of the detailed development, but no draft has been actually submitted.

3. A simplified procedure for the modification of already existing detailed development plans has been introduced, where the interested parties under these procedures are only the persons initiating the request for modification (Article 135a). Such cases do not require the issuance of an order for DDP draft modification, and the interested parties may directly submit a draft modification which needs to be sufficiently substantiated regarding the scope and reasons for the modification, as well as accompanied by a request for its approval.

III. Investment design, construction permit and commissioning

One of the major and most debatable amendments, subject to the rejected President’s veto, is the provision of the new paragraph 16 of Art. 148 SPA. According to it, a construction permit in a regulated lot is to be issued only if the DDP has been applied with regard to the regulation, incl. the street regulation, connecting the site with the street or road network and providing access to the respective lot. The wording of the provision is pretty vague and thus might give rise to numerous disputes between contactors and municipal authorities, it may even allow for the municipalities getting unjustly enriched as a direct result of their negligence.

One of the municipalities’ key obligations regarding spatial development is applying the street regulation. Pursuant to the amendments, in order for a construction permit to be issued, the municipalities will now require the application of the street regulation not only with regard to the lot the permit applies to, but also with regard to other properties along the street up to the point where it is connected to another street, to which regulation has already been applied. This would block the intentions of many investors whose properties are located alongside newly designed unregulated streets and would complicate the entire construction process.

Moreover, owing to the ambiguity caused by the wording of the provision, a more serious question arises regarding the unconstitutionality of the new provision and the need to completely repeal it in order to guarantee the of citizens’ rights and the rule of law. An attempt is made, through the adoption of the new regulation, for the main obligation initially assigned to municipalities to be transferred to citizens due to the municipalities’ inability (or unwillingness) to fulfill these obligations. One of the main constitutionally guaranteed rights is thus threatened – namely, ownership right and the opportunity for exercising those rights. The absence of action on the part of the administration regarding street regulation and its application completely blocks the investment and construction process and, therefore, deprives citizens of the opportunity to easily and, above all, fully exercise their ownership right over the lots concerned.

2. Another amendment raising serious questions and debates is the new version of Art. 178, Para 3, item 5 SDA. According to the previous provision, construction works shall not be commissioned where the actions on the construction of streets, roads or lanes have not been performed in resorts, holiday villages, golf villages, water parks and other areas for recreation activities, linking the construction work with the street or road network and ensuring normal access to the respective lot. With the recent amendments, areas with medium and high-rise development, are included in the scope of areas described above, which practically covers an extremely large part of the urbanized areas.

As a rule, it is the municipality’s obligation is to build streets and street infrastructure.According to the new wording of paragraph 5, however in case the municipality does not take the necessary actions and does not build the street, the construction works may not be commissioned. This means that if investors do not want to depend on the municipality’s actions, they will have to build the street at their own expense. An explicit new paragraph 9 of the same article has been added in this regard. Even in these cases, the municipality’s assistance is still required since the contracting authority regarding the street infrastructure construction is the municipality itself. Absence of action on the part of the administration may result in unlimited blocking of the construction work for an indefinite period of time and consequently making its commissioning impossible.

3. A new simplified procedure has been introduced with respect to the change of the assigned use of buildings or of individual sites in the building where construction and installation works are carried out. With the newly adopted provision of Art. 147a SPA, a new legal figure of the so-called “Change of Assigned Use Permit” has been introduced, allowing for change of the assigned use of buildings or of individual sites in the building without preparing investment projects and issuing a construction permit. The Change of Assigned Use Permit shall be issued by the municipality’s chief architect, provided that the requirements for change of assigned use have been fulfilled (Art. 38 and 39 SDA), construction rules and regulations have not been violated and positive opinions are presented by the relevant competent authorities have come up with affirmative opinions regarding compliance with the requirements set by a normative act on the new assigned use.

4. The range of construction works for which approval of investment projects is not required and those for which the issuance of a construction permit is not required has been expanded. In addition, the adopted amendments have increased and strengthened demands and requirements towards consultants – the criteria for obtaining a certificate for performing conformity assessment of development-project designs and/or exercising construction supervision have been tightened, while the procedure of revoking certificates is now eased, with the Directorate of National Construction Control (DNCC) being able to review the consultants’ complex assessment reports regarding the compliance of the project documentation with the basic constructions requirements.

Boyana Milcheva

A lawyer of rare talent and ability, Boyana is one of the most recognizable Bulgarian experts in the areas of real estate & construction and tax law.

Nikolay Kolev
Senior Associate

Nikolay is a hard-working, attentive, and responsive lawyer playing a central role in DPC stellar real estate and construction team. He is also active in the areas of contract law, commercial law, and public procurement.

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