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RevCEDOUA A. 4, nº 7 (2001) >
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|Title: ||Os Planos Directores Municipais do Algarve|
|Authors: ||Pereira, Manuel das Neves|
Plano director municipal
Plano Regional de Ordenamento do Território do Algarve
|Issue Date: ||2001|
|location : ||Local:Coimbra|
|Abstract: ||Res:O caso sob estudo é o planeamento do Algarve centrado nos planos directores municipais, mas percorrendo-os nas suas relações com o Plano Regional de Ordenamento do Território do Algarve. Estes planos, que territorialmente se sobrepõem, apresentam-se no todo nacional continental com notas específicas. São estas: programação, existência e vigência do PROTAL anteriores aos demais previstos planos regionais de ordenamento do território; anterioridade da vigência do PROTAL à de todos os PDM do seu âmbito territorial; coincidência territorial entre um PROT, uma região de facto e uma região jurídico-adminis-trativa; litoralidade e relevância turística primaciais do território.
Para esta factualidade concorreram causas e dela decorreram conflitos, que cumpre cirurgicamente verificar por confronto e teste da validade e da eficiência, quer do bloco de legalidade jurídico-urbanística coevo à elaboração do PROTAL e dos planos directores algarvios, quer da evolução deste bloco até ao actual regime, inaugurado em 1998, pela lei base do urbanismo.|
Res:The Portuguese legal regime concerning urban planning, in matters regarding the relationships between the various planning instruments, adopts the conformity principle, that is, of a perfect hierarchical coordination – coordination meaning the methodical disposition of the urban mana-gement instruments that determines relationships between the same instruments. The local superior plan is the municipal directive plan (PDM). In what refers to who is bound to these plans, the legal regime determines that all municipal plans are binding on public and private entities.
Moving to another perspective, a different relationship based on compatibility is established between the municipal and state urban regulation block before and after the entering into force of the Portuguese Base Law on Urbanism, Country Planning and Policy in September 1998 (LBU) and the Legal Regime concerning Country Management Instruments (RJIGT) in 1999.
Those two blocks are, respectively, represented by the PDMs (a municipal competence) and the regional country planning plans (a national competence).
This text examines the municipal directive plans and especially the relationship between the various municipal directive plans in the Algarve and the Algarve regional country planning plan; this last one
coincides with the former ones (on a territorial basis) – the Algarve region. Those regional plans made for the entire country have specific details. These are: the program, existence and entering into force of prior PROTALs to the foreseen regional country planning plans; the PROTAL entered into force prior to the PDMs relating to the same territory; the territorial coincidence between a PROT, a region in fact and a legal administrative region; coastal and touristical relevance of the territory. Various causes contributed to these facts and from these stem legal urban conflicts that will be examined.
In order to examine the situation we will refer to the validity and efficiency of the legal urban block underlying the elaboration of the PROTAL and the municipal directive plans in the Algarve region and their evolution up until the present regime which began with the already referred to Base Law.
In the 1940s some project plans were elaborated for some urban agglomerations in the Algarve (a record is made of these in a chronological table at the end). However, such planning instruments did not constitute a combined legislative planning movement. Although the plans reflected some European urban movements they were not urbanistically coherent and even less comparable to what occurred in neighboring Spain during Franco’s rule.
The municipal directive plan, as a legal urban planning instrument was created by the first law regarding municipalities (Law n.º 79/77.10.25) and by Decree-Law n.º 208/82.05.26. During the elaboration of the PDMs the municipal law was revised by Decree-Law n.º 100/84.03.29. Decree-Law n.º 69/90.03.02 abolished Decree-Law n.º 208/82.05.26 and its complimentary diplomas. With the exception of the PDM belonging to Vila Real de Santo António the remaining PDMs followed the regime under Decree--Law n.º 69/90.03.02.
The Algarve municipal directive plans were not significantly preceded by preventive measures mainly
because the PROTAL was prior to them: close in time and close in what refers to the conforming legal urban block.
The competences of the legislatively expressed organs that make up the Portuguese local authority (Municipal Assembly and Town Hall) compliment each other in the pursuit of municipal competences in what refers to urban management. Therefore, an alternative sequence principle of procedural competences must inform the division or distribution of these same ones; in this manner if the proposal of elaboration should be presented, only or preferentially, by the organ with continuous management competences, given the legal binding, it should be up to the assembly to deliberate,
taking into account the relevance of the PDM as the highest municipal plan that can bind the remaining ones and that globally conforms the rest (urban plans and detail plans). The latter plans do not require a deliberation from the Assembly.
In what refers to the adjudication procedures of the municipal directive plans, the criteriums regarding the selection of competing teams to public offers for the elaboration, were (especially): time needed for execution, technical proposal (with the respective contexts and inferences of scientific and technical knowledge and the reality that will be the object of the plan); price; and, other contractual clauses proposed by the competing teams, seen as significant by the municipality in cause.
After some considerations on the elaboration and subsequent phases, we detained ourselves on the public inquiry: We then underlined that the following should be understood, the diverse country planning and development plans foresee, as a mandatory sub-procedure, a population consultation or a public inquiry.
They do not implement a special norm that excludes due to their nature other forms of realizing this principle pertaining to the public participation in the damage prevention, control, repair, and promotion of the environment and the quality of life or that lessens the binding force of this principle (article 66/2 of the Constitution); they can not lessen the range of the rights and guarantees of the administered that are constitutionally (article 268) and legally consecrated (articles 7 to 12, 52 and the following, 55, 59, 61 to 65, 115,117 and the following, and 158 to 177 of the Code of Administrative Procedure). In what refers to the results of this legitimating phase one should register that the results were very poor. The numbers (poor participation) have provoked a reconsideration of this phase in the sense of its alteration or substitution rather than proceeding with a quantitative and qualitative substantial analysis of the same phase; as well as the verification of the medium number of participation which is close to zero, of the alterations introduced into the proposals of plans that were the result of the inquiries. The constitutional consecration of the participation principle referring to those who are interested in the elaboration of these urban planning instruments (1997) continued in the RJIGT; the latter welcomed this principle in its active dimension (public intervention in any moment of the elaboration procedure) and in its massive dimension (the publicity principle as a rule for all acts or phases).
After the approvals by the local assemblies, government ratification, publications and registrations
the PDMs entered into force.
However, shortly after, municipal intentions to alter and revise these new PDMs began to be expressed!
What were the causes of this “revisionist movement”?
The causes can be divided up into two categories of discrepancies: one, between interpretations of state attributions and local competences in matters of urban planning, and another, which also conditioned local power relative to state powers in the conditioning of the execution of urban operations (private) that are the result of municipal authorizing acts. In other words we can describe this last situation in the following manner: the local municipalities understood this relationship as one of “compatibility” between competences, instruments, and powers while the State assumed, in urban matters, a relationship of “conformity”.
A. Relative to the first category of discrepancies we concluded that the state prevailed and thus demanded conformity for two reasons:
1. Because of the singularity of the Algarve in the country planning Portuguese legal order and especially:
a. because of the chronological order of the PROTAL and the PDM in this region; b. because these legislative packages appeared ex novo as a complex legal framework.
2. For reasons that may be verified in the Portuguese political administrative and legal entity space in general, maxime:
a. because the resources allotted to the procedures of elaboration of the plans in cause (state- PROT/ PDM – municipalities), were very disproportionately unequal;
b. Because in Portugal, between the State and the municipalities there still persists an authoritarian-napoleanic relationship that was (re)established and nourished during the period in which the Constitution of 1933 was in force.
B. Relative to the second category of discrepancies one can refer the cause of this discussion which lies in the approval of Decree-Law n.º 351/93.10.07. Due to this diploma the following activities became subject to the confirmation of compatibility with PROT rules on the use, occupation, and transformation of land: lot operations, urban and construction works; the intention to localize, ante-projects and projects of construction of buildings and tourist accommodations.
Although: licensed and titled in the case of a) by a permit; approved by the General Directoraty of Tourism or by the local municipality in the case of b).
And all characterized by: Being administrative acts (titled by a permit which licenses construction or lot operations when needed) that were prior to the entering into force of the PROT (which refers to the territory where the object of these acts is located).
If conformation of compatibility is not verified, the above mentioned diploma renders those administrative
As a result of the application of this diploma, and with the changes that were subsequently made to it in order to render it less rigid, we can point out that:
a) From a quantitative point of view and using a statistical perspective we can conclude that in the first twenty months of Decree-Law n.º 351/93.10.07 application only 8% of a total of 1100 petitions were declared to be incompatible when judged on conformity;
b) If we look at the efficiency and dissuasive powers of the administrative norms that went into force after the PROT we can find that some huge projects were reevaluated and then authorized;
c) Taking into consideration the effects of the jurisprudence in this area Decision n.º 517/99 of the 22nd of September rendered by the Constitutional Court stated that the Court would not declare various
norms of Decree-Law n.º 351/93.10.07 to be unconstitutional when understood that they should be
integrated by article 9 of Decree-Law n.º 48051 of the 27 of November 1967 which imposed a duty upon the State to compensate private individuals for rendering their previously valid permits invalid;
d) The terms of the consideration of this question whether at the level of the RJIGT whether at the level of the Urban Building Regime must be adapted to the option that holds that the PROT have a binding force. But the question surrounding the terms of admission of acts that constitute urban rights with a partial precarious nature (especially when there is a succession of regimes) remains open.
|Appears in Collections:||RevCEDOUA A. 4, nº 7 (2001)|
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