The Agricultural Land Protection Act stipulates that agricultural land "is a basic national asset and shall only be used for agricultural purposes". That rule is laid down and further developed in the Constitution: "Agricultural land shall be used for agricultural purposes only. Any change in purposes shall be allowed only in exceptional circumstances, when necessity has been proven, and on terms and by a procedure established by a law." The terms and procedures for change of designation are contained in the Agricultural Land Protection Act.
But is it possible, once the designation has been changed, for the land to become agricultural again, contrary to the will of the procedure applicant and without their express notification by the public authorities?
Territorial spatial planning
The spatial planning of the territory suggests a system of plans adopted in accordance with the social and economic development of the country. They are defined as an instrument for strategic planning that regulates the broad framework of long-term spatial development. The statutory regulations are contained in the Spatial Planning Act. Once duly approved, they are a mandatory basis for subsequent development plans.
The designation of a given plot is determined by the general development plan of a given municipality. The detailed development plans of the settlements in the municipality specify the spatial development solutions of the general plans and are subject to them. Unlike the general development plans, the assumptions of the detailed development plans concern each separate landed property and determine its specific use and planning regime. When the property is designated for construction, the detailed development plan determines the construction regime too.
The detailed development plans can cover settlements and territories, as well as parts of them. What plan will be worked out and applied depends on the development objectives and the concrete need. The Spatial Planning Act (Art 110) regulates the different types of detailed development plans.
Depending on its basic designation as defined by the spatial development schemes and plans the territory is divided into urbanized and non-urbanized. Urbanized territories include settlements, settlement formations and industrial parks outside the borders of the settlements and settlement formations. Non-urbanized territories are agricultural, forest and protected territories, damaged territories for restoration, territories covered by waters and water sites, and transport territories (Art 7, Para 1 of the Spatial Planning Act).
Change of designationThe change of designation of a site or a part of it is the change from one manner of use into another in accordance with the corresponding codes, which constitute basic cadastral data and are determined by the Cadaster and Property Register Act and the respective implementing regulations. (Spatial Planning Act, §5 (41) of the Additional Provisions.)
Sites within the meaning of the Spatial Planning Act include:
- landed properties;
- buildings, including buildings in course construction, as well as facilities of the technical infrastructure with independent sites in them;
- independent sites within buildings or facilities of the technical infrastructure.
- the procedure for the change of designation of a site is long, complex and expensive. It does not matter whether the restructuring includes construction works, as the law treats every change of designation of a site as a new site.
From agricultural land into urbanized territory
The concrete designation of the landed properties is determined by the detailed development plan (Art. 7, Para 1 and Art 8 of the Spatial Planning Act). Agricultural territories (Art 8 (2) of the Spatial Planning Act) are designated for farmland (fields, orchards and vegetable gardens, vineyards, meadows etc.) and uncultivated land (pastures, slopes, gullies, ravines etc.). The change of designation of agricultural land is admitted only in exceptional circumstances, when necessity has been proven, and on terms and by a procedure established by the Agricultural Land Protection Act and its regulations, and in compliance with the provisions of the Spatial Planning Act.
Ordinance No 19 of October 25, 2012 (Art 2, Para 1) stipulates: "Construction on agricultural land without change of designation is admitted for sites connected with its use and the functions of which sites are compatible with the designation of the land." The ordinance lists the cases when construction is allowed without change of designation. All other cases however require change of designation.
The change of designation of agricultural land into land for non-agricultural purposes can be admitted in the following cases:
- Construction of facilities of the technical infrastructure within the meaning of the Spatial Planning Act;
- Creation of new urbanized territories or expansion of the construction borders of existing urbanized territories (settlements and settlement formations);
- Creation or expansion of the borders of separate regulated landed properties outside the construction borders of existing urbanized territories (settlements and settlement formations).
The construction of sites that are not connected with the use of agricultural land cannot be performed on agricultural land without change of designation. Exceptions are the cases listed in Art 2, Para 4 of the Agricultural Land Protection Act and in Art 2, Para 1 of Ordinance No 19 of October 25, 2012. Interested persons have the right to seek determination and establishment of plots and/or a track and change of designation of the land when that is necessary for the construction of sites that are not connected with the use of land as designated. Procedure applicant can be the owner of the land or a person with the right to build on another person's property (i.e. who has an established construction right).
Construction permits are only issued following an effective decision for change of designation of the agricultural land.
The problem of time limitsThe Agricultural Land Protection Act establishes time limits (Art 24, Para 5 and Art 34, Para 1 and Para 2) for initiation of concrete actions, so that the decision for change of designation of the agricultural land can remain effective. In case the stipulations of the law are not observed within the set time limits, the decision becomes legally void.
The decision loses legal effect in the following cases:
- The fee under Art 30 is not paid within a three-month term of notification under Art 24a;
- No site construction permit has been requested within a three-year term of entry into force of the decision for change of designation;
- Construction of the site has not started within a six-year term of entry into force of the decision for change of designation;
- The decision establishing the final plot for design of the site becomes legally void if the interested person does not request change of designation of the land within a year's term following the entry into force of the detailed development plan;
- When the site is to be built in stages, the decision establishing the plot or track becomes legally void if no change of designation of the land necessary for construction of the first stage is requested within a year's term following the entry into force of the detailed development plan.
Once the terms mentioned above expire, the decision for change of designation of the agricultural land becomes legally void. That happens automatically and does not require taking an express nullifying decision, nor notifying the interested persons under the Administrative Procedure Code.
The persons shall still be notified but under the Agricultural Land Protection Act. Its Art 24a specifies the notification procedure when a decision for change of designation is issued in favor of the interested persons. The same procedure is used for notification of the persons when the decision loses legal effect.
The development of agricultural land once the terms have expired entails fines, as in such case the construction will be performed on agricultural land.
Interested persons are fined if they omit to take the necessary actions within the terms specified in the Agricultural Land Protection Act and its regulations. It should be noted that the Geodesy, Cartography and Cadaster Agency has no powers to judge the lawfulness of objections concerning the expiration of terms that result in the termination of the validity of decisions for change of designation of agricultural land.
Cases are possible where the owner has been issued a decision for change of designation of agricultural land but no construction has started within the six-year term of entry into force of the decision. Just before expiration of the term the owner may transfer the ownership to another person for the purpose of construction but it the acquiror is not aware of the preclusive terms, they will not be notified of the automatic change in the cadastral map. They will have no legal means to defend themselves; moreover, they will be subject to a fine. Applicable in such cases is the rule of "ignorantia legis neminem excusat", so law should be closely observed when such actions are taken.