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RevCEDOUA A. 4, nº 8 (2001) >
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|Title: ||O novo regime jurídico da urbanização e edificação: a visão de um engenheiro|
|Authors: ||Simões, José Eduardo|
|Keywords: ||Regime jurídico da edificação|
Regime jurídico da urbanização
|Issue Date: ||2001|
|location : ||Local:Coimbra|
|Abstract: ||Res:Qualquer alteração nos regimes jurídicos da edificação e da urbanização é uma operação complexa, revelando-se particularmente difícil quando as modificações são profundas. É o que sucede no 555/99, diploma que introduz novos procedimentos administrativos e impõe a discussão pública de projectos, altera os prazos de resposta da administração e define formas de actuação diferenciadas face ao seu incumprimento, mexe em conceitos relativos às operações urbanísticas, institui uma taxa para pagamento de infraestruturas urbanísticas, entre muitas outras matérias. Este artigo procura analisar e reflectir sobre algumas das medidas
expressas no diploma e antecipar as suas consequências práticas. Será que algo vai mudar? Trata-se, no fundo, de confrontar os louváveis objectivos de mudança do novo regime com a necessidade imperiosa de modernização dos serviços prestados pela administração pública, questão fulcral que é simplesmente esquecida no 555/99.|
Res:Matters involving the licensing of private works and urban lot operations (and urban works) were untill now treated separately. This situation frequently provoked difficulties due to the lack of harmony and coherence. The new legal urban and edification regime, Decree-Law n.º 555/99, seeks to unify in one diploma all these matters. The new regime has another objective: the simplification of administrative licencing procedures through the introduction of three possible situations: licencing (normal), authorisation (expeditious) and prior communication (which has almost immediate effects). The first conclusion that one should underline is that there are advantges in treating all matters regarding urbanisation and edification in a global manner and procedural simplification. Therefore, the two objectives are worthy of applause. The question that one should place is: are these objectives attainable through this new regime? The most simplest administrative procedure now foreseen regards the prior communication where a more relaxed posture of urban control is adopted. This procedure stems from a mere communication to the municipality and covers acts of reduced importance. The works can be initiated 30 days after the request unless the municipality verifies
(within 20 days) that the works involved do not fall under this type of procedure. The authorisation procedure covers more important or complex cases than the ones previously mentioned, but in a simple and expeditious manner. They are after all exempt of all consultations from entities outside of the municipality involved. This procedure is subject to a rapid analysis that could be classified as reasonably precise, which is positive, and imposes the fullfilment of tight schedules of consideration and deliberation. However, the new alterations to the diploma have rendered this procedure of authorisation almost meaningless in view of the fact that the type of urban operations covered is almost residual. This alteration constitutes a significant step backwards. It merely “fils in” the license procedure which is more or less identical to the regime presently in force. It applies fundamentally to cases located in areas where no plan or other urban instruments in force exist or when plans, although in force, are only partially effective and considered incomplete. That is, practically in all urban operations. Therefore, the differences in relation to the present situation are insignificant. Therefore, it seems clear that the regime that will enter into force does not take the necessary steps in order to institute a system that is based on the full professional responsability of those who draw up the projects. It maintains a dubious position that has negative reflexes on the schedules that regard answers, in the procedures, in urban management, and in the viabilty of operations. One should note that the deadlines that are stipulated for the practice of each type of administrative procedure were reduced. However, the public administration is the same and all of the aspects of modernisation and organisation on an efficient basis of the municipal services are not even considered. This is a serious oversight. The distinction between the types of procedure (licence, authorisation and prior communication) are important in the legal form because of the reaction that private individuals can have, in face of administrative silence, once one counts the time for their actions. In the case of the licence, the figure of tacit approval disappears and is substituted by the legal notification to practice a legally foreseen act. This notification, which is requested in the administrative courts is qualified as urgent and is a consequence of the revision made in 1997 to article 268 of the Constitution (actions regarding the notification of the administration in order for it to practice a certain and foreseen act). In what regards the authorisation procedure, tacit approval is applied here as soon as the administrative dealine for a decision expires. In this case, the pretension is considered to be tacitally approved, it is not necessary to resort to the courts. The interested party may begin his operation immediately once the taxes are paid. It seems simple, but appearances are misleading. It is easy to demonstrate that this figure will be of difficult practical application. In the case of prior communication, administrative silence tacitally approves the pretension with the general legal consequences. It seems uncontestable that, in matters so delicate as the relations between the administred and administrators, coupled with the tensions between the burocracy and the forms of notification or tacit approval and more legal appeals, the creation of arbitration commissions to resolve conflicts which emerge from the application of the new regime and municipal regulations is a useful and necessary measure. The diploma introduces the obligation of a public discussion of urban operations, namely lot operations in general, which should be realised in terms that are analgous to detail plans and works of significant urban relevance in view of a municipal plan of territorial planning that is binding. It also considers the hypotheses of not holding a discussion, through the municipal regulamentation, for lot operations that do not exceed the following limits: 4 acres; 100 homes; 10% of the urban surrounding in which the pretension is inserted. These new rules apply to the operations iniated by private individuals. However, the same type of urban operations, if promoted by the public administration and with the same urban instruments applicable, are not submitted to public discussion. This diference in treatment favourable to the administration is not justifiable and should be elimnated. It seems clear that matters of relevant interest to the populations or that represent offences to third party rights should be publicised and discussed in an adequate manner. It is a new guarantee conferred upon the administred that should be well used. However, one should not forget that any new procedural phase added to the consideration of any particular case is yet another step for the burocracy. Being another step in a procedure that is generically considered to be very slow, heavy, and burocratic, the public discussion phase can be understood as a check in order to dilue the effects of the shortening of the deadline for consideration. The diploma institutes a tax for the realisation, maintenance, and reinforecement of municipal infra-structures which should be foreseen in the municipal regulamentation. But there is no effort to justify the calculation of this tax. It is necessary to adequate this tax with all of the other contributions, taxes, and fees, that coexist and exist in duplicate. One should also consider the investments and financing that were obtained. It is also fundamental to activate the obligation on the part of each municipality to calculate and permanently demonstrate, case by case, the necessity to realise, amplify, alter or reinforce existing
infrastructure in the name of transparency. It must be showm how one balances the improvements realised by those who initially start certain operations (and pay the taxes involved) in face of third parties that begin their urban operations afterwards (the infrastructures can be common and executed, who must pay who). It is also necessary to define the deadline for the realisation of these infrastructure works done by the municiplaity, that are necessary and paid by the urban operations that are realised and stipulate what should happen if they are not executed. It is also necessary to consider lot operations, urban works and edifications done by the public administration in order to well calculate the taxes involved as well as determining their part. Imposing tight schedules and by differentiating the procedures in accordance to the type of urban operation one reinforces the necessity of administrative modernisation. Administrative services should evolve towards forms of integrated urban management that are both agile and capable. However, the “status quo” may be stronger than the good intentions expressed. The complexity of this diploma is great. There are various negative situations and deficiently resolved situations. However, its application contains some potential that if taken advantage of in order to realise a real reform of municipal public administration, in particular, can contribute to improve its image and the specific services it provides. More than a wish, it is hoped that this will effectively occur.
|Appears in Collections:||RevCEDOUA A. 4, nº 8 (2001)|
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