The Romanian Code of Territorial Planning, Urbanism and Construction – a new type of regulation in Romania


Raul Andriuc, Senior Associate

In 2021, the preliminary theses of the Code of Territorial Planning, Urbanism and Construction (the "Urbanism Code") were published. Various specialists, representatives of public institutions and professional entities with competences in the field of construction were involved in drafting these ideas that served as the basis for the Urbanism Code.

The theses established a set of principles that underlie the drafting of the Urbanism Code, its structure, as well as the main purposes it pursues. The Urbanism Code will unify in a single enactment many existing regulations in the field in order to eliminate legislative inconsistencies and inconsistencies in the application of legal provisions, as well as to bring more clarity to the regulations in the field.

Furthermore, in adopting the Urbanism Code, the aim is to regulate and/or clarify some situations encountered in practice for which the regulations in force do not provide a clear solution, which can eventually be deduced by way of interpretation.

The Urbanism Code will include, inter alia, provisions on territorial planning and urbanism documentation, with rules applicable to the entire national territory and other rules applicable only to certain areas benefiting from a special protection regime (e.g. Biosphere Reserve "Delta Danube”), provisions on the approval and adoption of urbanism documentations, authorization of construction works and elements of administrative litigation specific to urbanism/planning legislation.

One of the regulatory directions pursued by the Urbanism Code is the consequences of the cancellation/annulment of urbanism documents and building permits. Thus, the preliminary theses of the Urbanism Code also include an approach to dealing with the consequences of the cancellation/annulment or a declaration of illegality of urbanism documentation (i.e. General Urbanism Plan, Zonal Urbanism Plan, Detailed Urbanism Plan) or a building permit. Such a regulatory proposal is more than welcome given that the current regulation fails to address these issues to a sufficient degree, which has led to different interpretations in practice.

With regard to the cancellation/annulment or a declaration of illegality of a building permit, although the current legislation allows a court to order the demolition of buildings constructed on the basis of such a permit, the legislative framework does not provide sufficient elements to ensure the enforceability of such a sanction. Thus, while the costs of the demolition are borne by the beneficiary of the building permit (or the person who constructed a building without a permit, as the case may be), the law does not regulate those situations in which the person obliged to demolish the building is unable to bear the costs of demolition. Furthermore, there are no regulations currently in place to help prevent this situation arising.

Another direction pursued is the diversification of building permit categories according to the types of construction works (construction, fit-out, demolition), depending on the place or the extent of the works (urban, rural, protected built areas, etc.), the category of importance, together with the adoption of new, simplified procedures for certain special or minor works, in order to simplify the authorization process.

Although the current legislation provides for certain types of construction that can be authorized through a simplified procedure (e.g. works for the arrangement of public spaces, works for the erection of temporary constructions, for partitioning, for closing balconies, etc.), it is useful to regulate some general criteria that will lead to the inclusion of construction projects in the general authorization procedure or in a simplified authorization procedure, and allowing the extension of the application of a simplified procedure to certain categories of permanent or autonomous constructions.

Further, the differentiation between the building permits issued in rural areas and those issued in urban areas could have beneficial effects on industrial projects (energy capacity, factories, etc.) that are suitable for rural areas, insofar as it will regulate a more flexible authorization procedure as well as potential obligations for investors to contribute to the development of the local community (e.g. local infrastructure).

Last but not least, an extra fee/tax (in Romanian: suprataxă) is introduced for illegal constructions. Thus, a principle that will underlie the Urbanism Code is the use of fiscal instruments to increase discipline in the construction field, including provisions regulating an extra fee/tax for illegal constructions in order to discourage such practices.

Although penalising tax instruments are effective means of discouraging the practice of building constructions without complying with the provisions of the building permit or based on an illegally issued permit or in the absence of such, the rules governing the extra fee/tax for illegal constructions must prevent the application of disproportionate sanctions and must be correlated with the regulations on the manner in which an illegal construction may become legal (in Romanian: intrare in legalitate), provided as a means of redress.