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RevCEDOUA A. 3, nº 5 (2000) >
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|Title: ||Actuações Informais e "medidas de diversão" em matéria de urbanismo|
|Authors: ||Silva, Suzana Tavares da|
|Keywords: ||Actuações urbanísticas informais|
Modernização do direito administrativo
|Issue Date: ||2000|
|location : ||Local:Coimbra|
|Abstract: ||Res:A necessidade de modernização do direito administrativo tem sido, ultimamente, uma tónica dominante. Esta preocupação tem dado origem a inúmeras propostas a que aqui nos pretendemos referir em breves palavras, em particular no que respeita ao direito do urbanismo. Tributário que é em sua grande parte da doutrina e exemplos germânicos,
este estudo não dará, em alguns casos, resposta a angústias presentes dos leitores nacionais, mas apenas sugestões de iure constituendo.
Todavia, o mesmo não se pode dizer no que às actuações informais concerne, pois, porque informais, não se encontram amarradas às malhas das diferentes legislações nacionais.|
Res:Informal actions correspond to administrative practises and activities that can not be placed into the legal categories of administrative actions. We can group them into two large categories: those that substitute administrative procedures and those that, with different objectives, integrate themselves within the procedures. These actions emerged due to the new demands that are placed on administrative law whose legal structures do not seem to comport an effective answer. We will see, after a comparative analysis, that urban law is a flourishing dominion for these types of actions.
We are witnessing the emergence of new legal paradigms. Deregulation and agreement are an expression of these new paradigms that lead to procedural simplification, on the one hand, and the privatisation phenomenon that has lead to more regulation on the other hand. This transformation shall require a new understanding of the constitutional principle of the Welfare State and a greater intervention by society in what was until now only considered as a state task and all of this will mean, necessarily, an increase in risk, as underlined by Beck, alongside with the traditional understanding of financial risk or simply the risk produced by the type of activity exercised.
Applying this idea to urban law one can say that decreasing State intervention in the process that involves the realisation of works will lead, inevitably, to the greater amount of responsibility on private individuals in order to guarantee the same works. Therefore, the owner of the works will become more free and will be able to realise his projects at a much faster pace but he may also be held more accountable — all of this depends on whether he is willing to accept the risk or not.
In the context of urbanism , “Deregulierung” must be understood as a complex concept, signifying not only a reduction in norm production, but, simultaneously, a reduction in the proper regulamentation complexity of some materials, in order to enable their efficient application. This reduction of tasks in the process of urban law implies a greater rationalisation that leads to simplification which applied to the present context of the information society may mean something like this: as the amount of information increases (by influence of new technologies) the necessity of administrative vigilance is reduced when the activity developed is defined in a clear normative manner.
More than eliminating tasks within procedures, proposals to eliminate the necessity of some procedures emerge, that is, that in certain situations administrative responses could be dispensed (for ex.,
in the case of stable construction, dog shelters, etc) in view of the fact that these constitute small internal works physically situated outside the home. Here, in the “deregulierung”, we are still not privatising in the sense of transferring tasks and decisions to private individuals but only trying to simplify and remove the authoritative tone on procedures without impact.
However, where the novelty first begins to be noted is in the area of the new solutions that seek to share tasks between State and society or in other words between the Administration and private individuals — privatisation.
It is worth noting that we are not only talking about “privatisation” in the sense of transferring public tasks to the private sector. In this way, it is important to bear in mind the distinctions between the denominated material privatisation (materiellen privatisierung) from the formal privatisation (formelle privatisierung), from the financial privatisation (finanzierprivatosierung), from the pursuit of public tasks by private individuals (Behleiung) and the privatisation of procedure (Verfahrensprivatisierung).
De-codifying, simultaneously, those that correspond to real forms of privatisation from those that are but improper forms of this phenomenon.
The form by which the privatisation of procedure should be operated in the dominion of urban law originated the suggestion of three distinct models: the security model through public prerogatives (Versicherungsmodelle miot staatlichen Vorgaben), the certification model (Zertifizierungsmodelle) — where phases in which the administrative authority was required for the realisation of exams/evaluations are now substituted by private accredited entities for the effect or even by the certification of products; and finally, an expert model (Sachverstandigenmodelle). There is in the combination of these models a similarity with what happens with the “environmenatal auditors” (Unwelt-Auddit or Oko-Aiudit).
The privatisation phenomenon is particularly apparent in urban law when the licensing procedure is substituted by a “procedure through communication” (Anzeigeverfahren) but the public entities’ responsibility remains intact and also in the area of licence exemptions (Freistellung) or dispensations (Befreiung). These are exceptional cases where the initiative procedure is totally private and only its accompanying presupposes administrative control. But not everything is well in the privatisation of procedure. It is possible to list some difficulties that this reality has raised, especially in what respects its conformity to some legal-constitutional principles.
In truth, the Administration calls upon private individuals to collaborate with her but she is the only one who is legitimated to pursue those tasks. In light of this we must ask if there are tasks that can not be delegated? Are there no limits to this privatisation? How does one select the private individuals? Is there no violation of the rule of law? And of the principle of the Welfare State? Another interesting example that we can find in German law refers to the law-measures of plan execution (Ma nnahmengesetz zum Baugesetszbuch – BauGB – Ma nG) which regulates the initiative of plan elaboration. In fact, the § 7 Abs. 1 Nr. 2 of the BauGB – Ma nG permits that an informal agreement regarding the content can occur before administrative approval of the project (Gemeinde). Though this expedient the Administration accepts the proponents proposal which we consider to be divided into two parts: one relative to the plan agreement and the other relative to the agreement regarding the plan’s future execution. All of the work referring to the proposal elaboration is done by private individuals in collaboration with the Administration, but this last one provides the final form to the act making this an instrument of plan privatisation (privatisiertes Planungsinstrument) — its proposal is wholly conceived by private individuals.
This form of action corresponds to a product of a communicative, informal and consensual process between the Administration and private entities that determine the result of the procedure. It seems to us that this is a phenomenon of informalisation and not privatisation in that we are not before a case where the administration asked for collaboration but only of accepting a certain situation apparently arising from a spontaneous initiative due to the advantages that it represents.
Other examples are: 1) the so-called “projektmanagement”, that is, the active promotion of the realisation of a certain project, especially through the organisation, co-ordination and mobilisation of all the necessary parties, individual and institutional; 2) the concentration of procedures when in complex procedures one opts for “licensing concentration” (genehmigungskonzentration) into one, allowing for the question to be considered in a unitary form; 3) technical norms, that set of rules elaborated by collective persons of private law, to which legal norms remit with the objective of standardising activities, submitting them to the same level of requirements and a same pattern or level of control; 4) urban covenants negotiated between the administration and private individuals within the scope of urban actions and where one can underline those that refer to urbanisation costs, whether those in which the private individuals and the administration negotiate specific rules in order to lessen the costs for the private individuals (cooperation system), whether those in which private individuals negotiate directly with a Compensation Board (compensation system). Beyond these covenants, the entire system of consensual management on a triangular basis: administration urbaniser – owners and equal distribution mechanisms are also important in plan execution and concretisation. All of this contractual activity in the dominion of urbanism is seen as desirable by the administration from a financial viewpoint. The opening of country planning law to contractualisation simultaneously signifies a souce of capital in the pursuit of public tasks and a real internalisation of costs and risks within an enlarged scheme. Those that are most sceptic in relation to these actions regard them as a commercialisation of the authority prerogative”.
Finally, a few words on protection rights. In fact, the rule of law can not and must not hide behind this new legal philosophy in order to legitimise any withdrawal from its duties at the material level and must continue to watch over the guarantee dimension either by directly assuming the responsibility or proposing alternative and valid schemes regarding that same responsibility.
The first problem that we are confronted with refers to the protection of “urban neighbours” (Nachbarschutz),
especially in matters of damage compensation. The question is especially important when we consider, for example, licence exemptions. If there is no administrative act to question how or against whom can the “neighbours” react? The possible answers do not seem consensual. However, it is also possible to defend the view that the intensity of the protection required suffers a slight diminishing in the name of the benefits gained and the fact that no licence signifies an option in favour a self control of the private parties involved (proponents, investors and urbanisers, etc.).
In sum, we tried to shed light on some of the new problems that face urban law (that we understand here as unitary and therefore include planning law). We believe that these new practises, whether we observe them from the point of view of the advantages that they offer and therefore we defend them, whether in regard to the dangers that they pose which lead us to reject them, will emerge, inevitably, associated to large projects that mobilise large sums of capital. Curiously, this means that although there is an increase in the risks associated to them they also constitute a solution found by the Administration and by large investors when they both do not want to risk, a lot, and prefer to know that which they could mutually hope for!
|Appears in Collections:||RevCEDOUA A. 3, nº 5 (2000)|
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