In our column “You ask, We answer”, you can ask your questions related to ecology and environmental protection to Adv. Alexander Asenov. For legal advice and questions, contact the EcoVarna Legal Fund.
Question from a reader: If a municipality does not have an adopted municipal ordinance for greening in implementation of the Territorial Planning Act, does the effect of Ordinance No. 1 for the protection of green areas and decorative vegetation remain in force?
If there are no provisions transferred from Ordinance No. 1 in the municipal ordinance or such is not adopted, is the municipality responsible and can it be sued?
Here is this article claiming that the old Ordinance is being used:
ANSWER:
The Ordinance in question No. 1 of 30.03.1993 for the protection of landscaped areas and decorative vegetation / Obn. DV. No. 26 of March 30, 1993/ was issued by the Minister of Territorial Development and Construction on the basis of Art. 201, para. 1 of the Law on Territorial and Settlement Planning (ZTSU)/repealed/.
This Ordinance repeals the previous Ordinance No. 1 on the protection of long-lasting decorative trees and trees of historical significance, issued by the Ministry of Forestry and Forestry (SG, No. 22 of 1984), reissued on the basis of the Forestry and Forestry Act.
The Law on Territorial and Settlement Planning/repealed/ was expressly repealed in 2001 with the adoption of the Law on Territorial Planning, which in principle also repealed all by-laws that were issued under the old law – ZTSU, including the mentioned regulation of 1993
In fact, in order to preserve the stability of the regulatory system of the territorial organization, the zoning law exceptionally allows the by-laws issued on the basis of the Law on territorial and settlement planning to be applied until the issuance of the corresponding new by-laws, as long as they do not contradict the zoning law.
The Territorial Planning Act regulates the framework of landscaping the territories and the overall management of the green system in the municipalities in Art. 61-Art. 63 of Section XI. Layout of green and wooded areas from Chapter Three LAYOUT OF TERRITORIES AND LAND PROPERTIES of Part One. FUNDAMENTALS OF TERRITORY DEVICE.
It is assumed that a general Ordinance similar to Ordinance No. 1 of 30.03.1993 for the protection of landscaped areas and ornamental vegetation will be adopted by the Ministry of Agriculture and Forestry on the basis of the ZUT, but it has not been adopted.
Instead, the legislator in 2007 with an amendment to Art. 62 adopts a different approach and foresees that instead of a single regulation, a regulation for each municipality is adopted at the local level.
According to these provisions and in particular the new provision of Art. 62, para. 10 of the ZUT, each municipal council must adopt an ordinance for the construction and protection of the green system on the territory of the municipality. Since this is provided for by law only in 2007, the municipal councils were obliged to adopt the regulations under Art. 62, para. 10 within three months of the entry into force of the law, i.e. as of 27.07.2007
As a matter of fact, to the extent that the adoption of the ZUT itself allowed for the possibility of the existing by-laws continuing to operate, it can be assumed that until the amendment in 2007, the Ordinance No. 1 of 30.03.1993 on the protection of landscaped areas and ornamental vegetation /Rev. DV. No. 26 of March 30, 1993 , of course in the parts that did not explicitly contradict the ZUT.
After the amendment of the ZUT, respectively after the delegation of the issuance of the regulations at the local level, it can be categorically accepted/not later than 27.10.2007/ that the possibility of applying Regulation No. 1 of 30.03.1993 has finally ceased .
After the specified date, the municipality is in delay if it has not adopted the relevant municipal ordinance for the construction and protection of the green system on the territory of the municipality.
If this is the case, the municipality would be responsible for all damages resulting from the non-acceptance of the ordinance, and the relevant officials would bear administrative, disciplinary and property responsibility.
Of course, the relevant municipality can refer to the express norms of the ZUT, but they are extremely laconic, as far as the idea is to develop things, procedurally and technically at the level of an ordinance.
However, the municipality has no legal basis to apply Ordinance No. 1 of 30.03.1993 for the protection of landscaped areas and decorative vegetation. DV. No. 26 of March 30, 1993/
The provisions of the Ordinance would only have an aspirational value and can be applied as appropriate, with the possible meaning of an expert opinion, which must be further substantiated
In this sense, if it does not contradict the legal norms, according to the principle that what is not prohibited is allowed, separate texts from the Ordinance can be used, as appropriate, but they will not have normative value, but will have to be applied, as appropriate, as far as this is permissible.
