The Government has presented the Portuguese Parliament with the Legislative Authorisation Bill 48/XVII/1 (PL), with the aim of amending the Legal Regime for Urban Development and Construction (RJUE).
The draft Decree-Law (PDL) attached to the bill, which may not correspond to the final version approved by the Government, presents a wide range of very significant changes with a direct impact on municipal urban planning and the activities of economic operators, notably the following:
Key changes
1. New urban development concepts
The PDL establishes new urban development concepts and modifies some of the definitions contained in the RJUE, such as reconstruction works, alteration works and extension works, with potential implications for the urban planning objectives covered by the RJUE.
2. Municipal regulations may regulate procedural and investigative aspects and set maximum deadlines for the execution of urban development operations
The draft bill provides that municipalities may once again regulate:
i) Procedural aspects in situations where the law refers to the implementation of the respective procedures for municipal regulation;
ii) Bringing of proceedings where express legal provision exists.
The general rule that municipal regulations on urban planning that contravene the law are null and void is also eliminated, with this invalidity being reserved only for some of the provisions of the regulations that suffer from this defect.
An amendment is also introduced to allow municipal regulations to lay down the conditions and maximum deadlines to be observed in the performance of urban development operations.
3. Scope of licensing and prior communication procedures
The scope of application of the licensing and prior notification procedures has been changed, both in terms of land subdivision operations and in terms of urbanisation, construction, alteration, extension, conservation, reconstruction or demolition works, with some urban planning operations that were previously subject to prior notification now requiring a licence and vice versa.
4. Reintroduction of use control
According to the PDL, the use of buildings or their units after the work has been carried out is dependent on a prior communication being submitted, and the conformity of the prior communication and its instruction is checked during subsequent inspections.
The use of buildings must comply with architectural designs and exterior arrangements, with the conditions introduced in the approval of the designs, as well as with the legal and regulatory standards that establish permissible uses.
5. Planning permission/building permit
The concept of a "building permit" is introduced, now referred to as "planning permission", since the express granting of licences and prior notifications with deadlines is conducted via standardised documents, approved by ministerial order, which must contain a summary of the urban development operation and be accompanied by proof of payment of the applicable fees and other charges.
The preamble to the authorised bill clearly states that the intention is to reinstate 'the concept of planning permission' as a document that ensures legal certainty, probative effectiveness vis-à-vis third parties and ease of transferring rights associated with urban development operations.
6. Exempt works
For exempt works, the following documents, among others, must be submitted when notifying the start of the works:
i) Proof of payment of fees and other charges due;
ii) Proof of transfers;
iii) Specialist designs;
iv) Other information contained in the "investigative elements" ordinance;
v) Statement of responsibility of the project authors, attesting that the applicable legal and regulatory standards have been observed in their preparation;
vi) Statement of responsibility of the project coordinator, certifying the compatibility between the projects.
When exempt works involve intervention concerning the stability of the building, a statement of responsibility drawn up by a qualified technician in accordance with the legislation in force must also be sent to the municipality, stating that the works, considered as a whole, improve or do not impair the stability of the structure compared to the property's situation before the works.
7. Commencement of works
Under the proposed wording, all works exempt from licensing must be reported to the local council at least five days before work commences. In some cases, it will also be compulsory to submit documentation accompanying this notification.
A penalty framework is also approved for non-compliance with this obligation to report the commencement of works.
8. Deadlines
The overall decision deadlines indexed to the gross construction area were removed.
The 30-day deadline for approval of the architectural design was maintained, although the starting point for counting the days was changed.
On the other hand, under the PDL, the decision deadlines are subject to the following rules:
|
Topic |
Draft Contents |
|
Deadlines for council's decision (on pain of tacit approval) |
(a) 20 days - construction and demolition works; (b) 45 days - land subdivision operations; (c) 30 days - urban development works and land remodelling works. |
|
Start of the decision period for building and demolition works |
The period begins on the date of: a) Presentation of the specialist designs and other elements, if later submitted; or b) Approval of the architectural design if the specialist designs were submitted in conjunction with the initial application. |
|
Start of the decision period for land subdivision operations, urban development works and land remodelling works |
The period begins after: a) The end of the preliminary clearance and assessment; or b) Receipt of the information submitted in response to the prior hearing of the interested parties; or c) Receipt of the last of the opinions, authorisations or approvals issued by entities outside the municipality when consultations are required, or the expiry of the deadline for their issuance, whichever occurs first. |
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Joint application for licensing of urban development and land subdivision |
For the approval of the land subdivision operation, the deadline begins after: a) The end of the preliminary clearance and assessment; or b) Receipt of the information submitted in response to the prior hearing of the interested parties; or c) Receipt of the last of the opinions, authorisations or approvals issued by entities outside the municipality when consultations are required, or the expiry of the deadline for their issuance, whichever occurs first. For approval of the urban development works, the period begins after approval of the land subdivision operation. |
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Deadline extensions |
All deadlines may be extended once, for half of the initial period, by means of a reasoned decision by the municipal council, based on the particular complexity of the operation, especially in the case of land subdivision operations involving urbanisation works, which may call into question the effective formation of tacit approval. |
9. Deadline suspensions
The authorised bill provides for the introduction into the RJUE of new cases of suspension of legal deadlines, such as:
i) When there is public consultation in the context of requests for prior information or licensing;
ii) During the procedural assessment phase, the notification for the Applicant to correct or complete the application, thus departing from the general rule of the Code of Administrative Procedure; and
iii) Where additional information is requested in the context of the procedural conference, the deadline for holding the conference is suspended.
10. Police involvement
The current regulations clearly and absolutely prohibit the requirement for police involvement for urban development operations, even when they involve blocking public roads.
This framework has been changed, whereby police involvement is required whenever this proves to be indispensable for traffic management or for the safety of people and goods.
11. Preliminary clearance in prior communication
The preliminary assessment stage introduced by the previous scheme is abolished in the prior notification for the execution of the urban development operation.
12. Declaration of nullity deadlines
The deadline for declaring the administrative acts provided for in the RJUE null and void is reduced from 10 years to one year.
13. Compulsory procedural conference for external opinions based on location
Consultations with entities outside the municipality must now take place at a procedural conference. Under the wording still in force, the procedural conference was only envisaged in the event of divergent positions between the consulted entities.
There is also the possibility of requesting additional information from the official at this stage, which extends the deadline for the consulted entities to respond.
It is no longer possible for the official to directly address external entities for consultation and obtain their express opinion and/or invoke the formation of a favourable tacit opinion.
14. Arbitration
Private individuals are permitted to demand the conclusion of an arbitration agreement for disputes relating to acts, opinions and omissions within the scope of the RJUE.
This recourse to discretionary administrative arbitration is, however, dependent on the approval of a Ministerial Order by the members of the Government responsible for state reform, construction, local authorities and spatial planning, the draft of which has not yet been made available.
15. Urban development operations subject to Environmental Impact Assessment
It is expressly prohibited to submit a licence application, a request for prior information that may result in exemption from prior control of the urban development operation, or prior notification before the Environmental Impact Statement (EIS) has been issued.
Next steps
Draft Bill 48/XVII/1 is only the first step in the legislative process. Since it is a legislative authorisation, approval by the Assembly of the Republic is a necessary condition for the Government to approve the authorised decree-law attached to it.
Following the parliamentary vote on the Draft Bill – if it is approved – the Government will then have 180 days to approve the decree-law authorised by the Council of Ministers, send the final text to the President for promulgation and, once promulgated by the President of the Republic, publish it in the Official Gazette.
Until the entry into force of the authorised act, the current wording of the RJUE, resulting in particular from Decree-Law 10/2024 of 8 January (Simplex Urbanístico), remains fully applicable.
