12. 5. 2020

Amendments to construction legislation under the anti-corona stimulus package

On 28 April 2020, the National Parliament adopted the Amendment to the Act Determining the Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy (ZIUZEOP-A), which also affected the area of construction legislation somewhat unexpectedly and controversially. The law came into force on Friday, 1 May 2020.

The new provisions related to construction legislation are regulated in Articles 100.b and 100.h of the Act Determining the Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy (ZIUZEOP). Most of the provisions relate to the procedural rules regarding facilities that require both an environmental permit and a building permit for their operations, that is to say, for facilities with an environmental impact (integral procedure), and the eligibility clause for the construction of a facility, which applies to all types of facilities. 

ZIUZEOP-A allowed the application for a building permit for environmental impact facilities to be considered complete even if the application was not presented with a certificate of the right to build on a particular property (most often a property right, a building right or an easement) and the opinions of the evaluators must include any proposed solutions or guidelines and conditions for the execution of the works. In the event that the environmental impact report is negative, the investor shall at the same time have the option of instituting a process of domination of another public benefit over the public benefit of nature conservation. The Government of the Republic of Slovenia shall decide on the domination of other public benefits.

The provision of Article 100.d of ZIUZEOP-A states that the currently ongoing procedure for issuing an environmental consent continues as a procedure for obtaining an opinion on the acceptability of the construction intervention. Due to such a change in the procedure, the law explicitly states that secondary participants in the procedure for issuing environmental consent lose their already acquired status of a party to the procedure, thus retroactively interfering with the rights of those persons who have acquired the status of secondary participant. 

The provision of Article 100.f of ZIUZEOP-A (according to public data) actually prevents the participation of the vast majority of organizations with the status of acting in the public interest, in procedures for issuing building permits in an integrated procedure, which is contrary to the Aarhus Convention. For example, the latter requires signatory states (including the Republic of Slovenia) to provide appropriate broad recognition and support to associations, organizations or groups that promote environmental protection, and also to ensure that its internal legal system is in line with this obligation. Furthermore, the Aarhus Convention requires in several articles the right of such persons to participate in environmental proceedings, which will be very difficult, if not impossible, in Slovenia, given the new provisions. 

The provision of Article 100e of ZIUZEOP-A is relevant for all types of facilities, stating that the investor may start the construction of the facility at his own risk even after the building permit has been finalized. The current Article 4 of the Building Act (GZ) stipulates that a valid building permit is required to start construction. In the case of an appeal against the issued building permit, the investor will now be able to start the construction of the facility but will later have to be liable for any damage that will occur if the lawsuit is upheld. 

However, it should be noted that the described provisions belong to the chapter of Temporary measures introduced by ZIUZEOP, which is valid until 31 May 2020 or no later than 30. June 2020. The matter in which these provisions will apply after that date (if any) remains unclear for the time being.

Law Office Fabiani, Petrovič, Jeraj, Rejc d.o.o.
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