Retention planning permission option under the new Building Act
As of 1 June 2022, the new Building Act (GZ-1) will apply, which, among other things, brings changes in the area of retention planning permission. Read on to find out how the new law will deal with retention planning permission and which of the new law’s more favourable provisions will be introduced.
The Building Act (“GZ”) currently in force is set to be replaced by a new Building Act (“GZ-1”), which will take effect from 1 June 2022. We have already written about the changes in general in one of our previous posts (more here: https://www.fpjr.si/en/publications/2022/04/666-The-new-Building-Act-GZ-1-set-to-take-effect#middle). This time round we take a closer look at how retention planning permission is streamlined under the new law.
The term illegal building covers: (i) an illegal structure, (ii) a non-compliant structure and (iii) a dangerous structure. The aim of GZ-1 (as was the aim of its predecessor GZ) is to facilitate as many retention planning permission applications as possible. Retrospective planning permission is the process of seeking planning permission after the construction of a building or a part of a building, reconstruction or change of use of a building carried out without a building permit or in contravention of the conditions set out in the building permit. The law provides for two methods of retention planning permission: (i) by issuing a retention planning permission decision and (ii) by issuing a permit for a long-standing building.
A building or part of a building issued with a retention planning permission decision or a permit for a long-standing building is no longer deemed illegal or non-compliant and presumed by law to have an occupancy permit.
Obtaining retention planning permission via a retention planning permission decision starts with the building owner filing an application. This application must be accompanied by extensive retention planning permission documentation, which must include, inter alia, information on and a description of compliance with all the relevant spatial planning acts that were in force at the time construction commenced on the building until the retention planning permission application date. In addition to compliance with the spatial planning acts, the conditions for issuing a retention planning permission decision are: (i) that the building is completed (in the sense that it is fit for use); (ii) that the site degradation and usurpation fee has been paid by the time the decision is issued; and (iii) that the municipal contribution has been paid. The GZ-1 also sets a time limit for retention planning permission, i.e. an application for a retention planning permission decision may be submitted within five years of the entry into force of this law, i.e. up to 1 June 2027.
For cases where a building was constructed (before 1 June 2022) based on a building permit but not entirely in compliance with it (provided that deviations are legally permissible), the investor may “legalise” this building by submitting an occupancy permit application. The old GZ already provided leeway for permissible minor deviations. However, the definition of permissible minor building permit deviations has been amended (e.g. GZ-1 now allows for a building to be moved by a maximum of 1.0 meter, sets down the obligation to ensure that deviations do not affect permissions already given by adjacent landowners and the rights of the parties, and the duty to adhere to the building classification code).
GZ-1 maintains the possibility of simplified retention planning permission for long-standing buildings but redefines these as buildings built before 1 January 2005 (the GZ only included buildings built before 1 January 1998). Obtaining retention planning permission via a permit for a long-standing building starts with the building owner applying for a permit for a long-standing building. The key condition for obtaining this permit is that the building, part of the building, reconstruction or change of use of the building has existed in a substantially unchanged condition since at least 1 January 2005. This means the building has not been altered in shape, area or height, nor in use, since that date. To prove the latter, the investor must also include proof as part of the permit application that the building is long-standing.
Unlike the “regular” retention planning permission via the retention planning permission decision described above, retention planning permission for long-standing buildings is not subject to zoning act compliance verification, which considerably simplifies the possibilities and the retention planning permission process. Because the conditions for obtaining a permit for a long-standing building are less stringent, and the building may, in principle, be non-compliant with the planning acts, the permit is only conditional. In some instances, the administrative authority may, at the request of the government or a municipality, revoke the permit, without liability for damages if this is necessary to safeguard the public interest in the event of an imminent threat to public health, the public or the environment. The law does not set a time limit within which the administrative authority may do so. However, the law limits this possibility of annulment only to those cases where the threat could not be eliminated by other less severe means.
As with retention planning permission decisions, permits for long-standing buildings are subject to payment, by the permit date, of a site degradation and usurpation fee and a municipal contribution.
However, retention planning permission (neither by retention planning permission decision nor by a permit for a long-standing building) is not an option for buildings constructed after 30 April 2004, in respect of which a final environmental or nature conservation consent should have been obtained before construction or adaptation work. Similarly, it will not be possible to grant a permit for a long-standing building if the building poses a hazard and has been the subject of an inspection measure.
The law explicitly provides that retention planning permission decisions and permits for long-standing buildings may also be issued for parts of a building. Namely, in practice, the ambiguous wording of the previous law has led to different interpretations. GZ-1 allows for a combination of the retention planning permission mechanisms. Buildings and any subsequent reconstructions or extensions can be screened separately for retention planning permission eligibility. This explicit possibility is welcome as it allows investors to choose a retention planning permission mechanism and opt for the most favourable method, in terms of the conditions, costs and proof.
Authors: Klavdija Kek, Senior Associate and Eva Bardutzky, Student
