Urban Planning Simplex and Legal Regime for Tourist Development – prior control procedures related to the execution of construction works
SÉRVULO PUBLICATIONS 04 Apr 2024
Following the publication of Decree-Law no. 10/2024, of January 8, the "Urban Planning Simplex" (hereinafter referred to as "Simplex"), several questions have already arisen about the combination of various rules of this regime with the Decree-Law no. 39/2008, of March 7, which approved the Legal Regime for the installation, operation and functioning of tourist developments (hereinafter referred to as “RJET”), as amended, namely those relating to changes to the prior control of the tourist use (which will be the subject of another update), resulting from the elimination of the use authorization (hereinafter referred to as “Use Authorization”), but also issues related to the prior control procedures applicable to the construction or alteration of the respective buildings.
The questions are even more relevant since, as is well known, since January 1, 2024, it has been possible to trade/transfer real estate assets without presenting the Use Authorization (please refer to article 19 of Decree-Law 10/2024), a rule that applies to all any types of real estate assets, including tourist accommodation units.
Please note that there is no rule in Simplex that revokes or modifies the RJET rules on (i) prior control procedures applicable to the execution of works in tourist developments and on the (ii) prior control of the tourist use. Bearing this in mind, it is necessary to understand how to apply the rules on these matters.
In this update, we will address issues related to the combination of the regimes in terms of prior control procedures applicable to the execution of works in tourist developments.
In fact, the RJET contains a specific regime regarding the execution of works in tourist developments. According to article 23 of the RJET, the procedure applicable to the execution of tourist developments follows the regime laid down in the RJET and is subject to the Decree-Law no. 555/99, of December 16 (hereinafter referred to as “RJUE”) - the legal framework on the infrastructures and buildings matters -, with the specificities contained therein. According to the same rule, the procedure applicable to the construction of tourist developments is the prior communication procedure with a deadline, provided for in article 23-A or, where applicable, the prior communication provided for in the RJUE, with the possibility granted to the promoter of choosing the licensing procedure.
Among the most significant changes to the RJUE introduced by Simplex, with possible effects on tourist developments, we can highlight the following:
- The modifications on prior control procedures;
- The end of the possibility granted to the promoter to choose for licensing procedures when the works are subject to mere prior communication;
- The new scope of the favorable Prior Information Request (PIP), which, when fulfills the requirements of points a) to f) of article 14, no. 2 ("qualified" PIP), exempts the respective projected works from licensing procedures.
As far as the prior control procedure is concerned, there seems to be no doubt that the aforementioned rules constitute a special regime in relation to the general RJUE regime and that, therefore, the special procedures provided for therein continue to apply, i.e. (i) the prior communication with a deadline of article 23-A or (ii) when applicable, the prior communication regime (without a deadline) of the RJUE.
In other words, in the past, whenever one of the situations provided for in Article 4(4) of RJUE arose in relation to a tourist development, the regime to be followed
would be the prior communication under Article 35 of the same law. Following the entry into force of Simplex, the situation remains the same, but the changes to the prior communication regime must be taken into account, as only the following works are now subject to this procedure:
Plotting procedures in an area covered by:
- Detail plan published after March 7, 1993, which contain urban design and provide for the division into plots, the maximum number of dwellings and the implantation and the program for infrastructures and building works; or
- Execution unit that provides for the basic perimeter of the parcel coverage area of the buildings, the gross construction area, the division into plots, the maximum number of dwellings and the implantation and the program for infrastructure and building works;
Infrastructure works and land remodeling works in an area covered by:
- Detail plan published after March 7, 1993 which provides for the implantation and the program for infrastructures and building works ; or
- Plotting procedure; or
- Execution unit that foresees the implantation and the program for infrastructure and building works;
Construction, alteration or enlargement works in an area covered by:
- Detail plan; or
- Plotting procedure; or
- Execution unit that provides the plots, alignments, the basic perimeter of the parcel coverage area of buildings, the total height of the buildings or the height of the façades, the maximum number of dwellings and the gross construction area and the respective uses;
Construction, exterior modification or enlargement works in a consolidated urban area that complies with municipal or inter-municipal urban plans and does not result in a building with a height greater than the most common façade height on the side of the street where the new building is located, in the section of the street between the two nearest crossroads, on either side.
The construction of swimming pools associated with the main building.
In short, it currently seems that the prior communication provided for in article 35 of the RJUE only applies to the situations where the project of the tourist development is located in an area covered by a detail plan, plotting procedure or execution unit, with the characteristics described above.
The question then arises: does the new rule in Article 4(6) of the RJUE, according to which the interested party can no longer choose the licensing procedure instead of the prior communication, also apply to tourist developments? It seems to us that the answer should be negative, given the special nature of Article 23(2) of the RJET, which expressly establishes the possibility of choosing the licensing if the promoter intends so. To summarise, since this rule has not been expressly repealed, in the case of tourist developments, the promoter can still choose the licensing procedure, which can certainly guarantee greater investment security in these cases.
More complex is the question of whether the new regime of exemption from prior control procedure resulting from a favorable "qualified" PIP can be applied, under the terms of both Article 6(1)(h) and Article 17(2) of the RJUE, in the version introduced by Simplex, but, from the outset, it seems to us that there is nothing to prevent the answer from being positive, since we do not think that the RJET's rules on prior control procedures rule out the RJUE's regime on requests for prior information and its effects. On the other hand, article 25 of the RJET expressly provides for the right of any interested party to "request prior information from the Municipality on the possibility of construct a tourist development and the respective urban planning constraints, under the terms of the legal regime on infrastructures and buildings matters".
The applicability of the PIP regime to tourist developments was not in doubt before Simplex came into force (determining the application of the RJUE's prior communication regime, under the terms of the previous Article 4(f) of the RJUE, instead of the prior communication of Article 23-A of the RJET). It seems to us that this still does not raise any doubts, but now with the new effect of exemption from prior control procedures. In a nutshell, whenever a favorable PIP is obtained under Article 14(2) of the RJUE, the projected works related to the tourist development will be exempt from prior control procedures.
Filipa Névoa | fne@servulo.com
Joana Pinto Monteiro | jpm@servulo.com
