However, the new provisions may create a contradictory legislative framework and do not provide developers and investors with much-needed legislative clarity in this priority area.
Law no. 166/2023 on the amendment and completion of Law no. 350/2001 concerning spatial and urban planning and on the completion of Law no. 50/1991 on the authorization of construction works entered into force on June 10, 2023.
“This is the latest in a series of relatively recent changes to the legislative framework governing the authorisation of construction of renewable energy projects, implemented by Law no. 254/2022 on the amendment of the Land Fund Law no. 18/1991 and Law no. 21/2023 on the amendment to Law no. 50/1991 on the authorisation of construction works. Although the intention of Law no. 166/2023 is commendable, the specific mode of regulation does not provide sufficient clarity and may generate different interpretations and implementations of its provisions”, said Madalina Fildan, Senior Associate PeliPartners.
The new regulation aims to create a coherent legislative and administrative framework without regulatory barriers to facilitate the achievement of the European Union’s binding target of at least 32% renewable energy by 2030.
The explanatory memorandum of the new law justifies the need to exempt renewable energy projects located in extra-muros areas from the obligation to draw up a Zonal Urban Plan (PUZ), a facility already in force under Law no. 21/2023. However, the text of Law no. 166/2023 envisages the extension of this facility to renewable energy projects located in intra-muros areas.
Thus, Law no. 166/2023 complements Article 111 of Law no. 50/1991 on the authorization of construction works. According to this addition, building permits may be issued without prior preparation, approval and endorsement of a planning documentation for renewable energy projects located intra-muros and extra-muros.
PeliPartners’ analysis shows that the same article already stipulated that building permits may be issued without prior preparation, approval and endorsement of a planning documentation for those investment objectives referred to in Article (2) (j) of the Land Law no. 18/1991, i.e. for solar, wind, biomass, bioliquids and biogas energy production capacities, electricity storage units, transformer stations or other similar systems located on extra-muros agricultural lands of class III, IV and V with a maximum area of 50 hectares.
“Consequently, at this moment, the regulation contained in Law no. 50/1991 is contradictory with regard to the exemption from the obligation to draw up an urban planning document for renewable energy projects located outside city limits: letter g) of art. 111 of Law no. Article 111(g) of Law No. 50/1991 limits this facility to projects located on extra-murros agricultural land of class III, IV and V with anarea of maximum 50 ha, while letter i) of the same article seems to extend the facility to renewable energy projects located on any land outside urban areas”, added Madalina Fildan.
In an attempt to provide a coherent regulation, Law no. 166/2023 also amends the provisions of Law no. 350/2001 concerning spatial and urban planning, also regulating in this law that the lack of an urban planning documentation does not prevent the issuance of a building permit for renewable energy projects located in the extra-murros or intra-murros areas.
PeliPartners’ analysis shows the regulation is incomplete, considering that Law no. 166/2023 leaves unchanged other specific provisions of Law no. 350/2001 which require the drafting of a zonal urban plan for projects located in technological zones. In the absence of a clear definition of technological zones, it could be argued that these also include electricity generation capacities, thus making it compulsory to draw up and approve zonal urban plans for such projects.
Reglementarea este incompletă, având în vedere că Legea nr. 166/2023 lasă nemodificate alte prevederi specifice ale Legii nr. 350/2001 conform cărora este obligatorie elaborarea unui plan urbanistic zonal pentru proiecte amplasate în zone tehnologice. În lipsa unei definiții clare a zonelor tehnologice, s-ar putea argumenta că acestea includ și capacități de producere a energiei electrice, făcând astfel obligatorie elaborarea și aprobarea de planuri urbanistice zonale pentru astfel de proiecte.