Urban Simplex: Political Power, Private Practice

Time asked time how much time time has, and time answered time that time has as much time as time has.

The origins… The recent publication of new legislation on urban licensing (Decree-Law No. 10/2024, of January 8) – Urban Simplex – has already led various law firms to disclose the changes introduced to the legislation, and some of them are already pointing out future problems, anticipating their involvement in the most dubious issues of the law. On the other hand, some entities have already been warning about the possible consequences. Professional orders are still trying to take positions, with the Construction Code on the horizon. “The circus is set up,”as the ancient Romans would say. The intention here is not to identify or list the content of the Simplex (already competently done by others), but to present a reading of this matter from the perspective of “both sides of the counter,” the public and the private. This text seeks to question matters that are important in defining the role of each actor: what should it be and what do we want from them. Let us begin by identifying the reason for this legislative change – the housing crisis resulting from the lack of housing units, whether from their construction or their rehabilitation. The construction industry is currently facing many difficulties: financing, labor, materials, and a lack of timely response from those who authorize construction. In all these areas, the government or the private sector is committed to providing solutions, but let us focus only on those related to projects, which are the basis of Urban Simplex. The housing shortage is not a problem of today, and it results largely from the low number of housing units built, with the number in the last decade corresponding to 1/7 of the values ​​of previous decades. The response appears urgent, and that means building quickly and in quantity. Time thus becomes a determining factor when it exceeds certain thresholds, and for two reasons: it increases the price of construction and delays the resolution of the crisis. It is therefore essential to control time considering three moments: the time needed to set up the operation, the time needed to authorize the operation, and the time to execute it. For each of these phases, there is a minimum and a maximum time. The minimum time corresponds to the necessary and sufficient time to carry out its actions, with the guarantee that nothing is left behind or overlooked. The maximum time is what dictates that from that moment on, time is no longer important because it has made the opportunity unfeasible.

Simplification?… Urban Simplex is the government's proposal to ensure that, in the phase of securing authorization for the execution of the work, the minimum necessary time is used, by changing some procedures and deadlines.

That is why the title assigned – Urban Simplex – does not do justice to what is proposed. It proposes the reduction of time, not the simplification of procedures. Simplifying involves reducing procedures, elements to be delivered, legislation to be applied, data and information standardization, etc. In Simplex:
• The procedures are essentially the same, with only the scope of their application changing;
• The elements to be delivered, with some simplifications, are identical;
• The legislation to be applied is the same, with small exceptions that postpone its application and effects for a few years, hoping that until then, they will work diligently on the new rules, namely in the Construction Code.

Changing the application of different procedures, through the opening of the scope of Prior Communication or the effects of a Detailed Prior Information (new designation of licensing, but with shorter review periods), meets the desired reduction in deadlines, but it is not a true simplification. The real impact of this legislative change is still to be fully assessed. There are significant impacts on public administration and private entities with foreseeable consequences, some, and poorly considered costs. The success of this change depends on its thoughtful and sensible application and its constant monitoring, followed without fear but with conviction, of the occasional changes that may be necessary. Changing everything so that everything remains the same is a common but hardly advisable practice if we truly want to achieve good results. In the field of urban planning, several changes have already been attempted, some taking a step forward… and two steps back. Interestingly, all proposed changes to the various legal regimes aimed at and were based on the need to simplify the previous model, complicating it with subsequent related legislation that was then produced. These legislative changes always had the same intention – to shorten the licensing time, whether for a subdivision or to build a building and put it on the real estate market, but with few effective results. The goodness of intentions always clashed with the reality of a public function with stricter procedures. Implementing new procedures can be easily achieved in 290 Municipalities, but it is a herculean task in the remaining 18. Almost everything has been tried in this quest to shorten times, from attempts at administrative simplification (for example: reducing review and decision deadlines by half, as if the simple act of reducing them in the law would become an immediate reality) to more complex attempts to introduce new, supposedly faster procedures. The present legislative change foresees a paradigm shift in legal practice by proposing the substitution, in many cases, of prior control by exemption from control. It is a common practice in the Anglo-Saxon legal system, based on a system of technical, business, and insurance accreditation, but not in ours. In this paradigm shift, the public administration relinquishes some of its power to decide on urban design, territorial urban management control, or even intervention priorities. The responsibility for some of the strategic objectives of the Plans passes from political power to technical power. The responsibility of designers increases as it moves from architecture to urban design and the image of the city, urban area, or landscape. This new paradigm may shorten the time until the start of the work, but it will certainly increase the time of its execution if the supervision has means to act. Correcting errors in design or construction is one of the great differences and risks of this legislative change.

The reason why licensing was chosen over prior communication refers to reducing the risk of intervention. By having a project approved, the promoter is highly certain that the work will proceed without major issues if the approved project is followed. On the other hand, Municipalities, always struggling to supervise most of the works taking place in their territory, see the pressure decrease because they know what is being built and how to organize their priorities in monitoring the works.

Fears and responsibilities…
Local authorities, namely their employees, fear being held civilly liable for their acts. Over the years, the complexity of procedures, legislation, and plans has increased in parallel with the responsibilities assigned to politicians, leaders, and municipal technicians. The increasing media coverage of cases related to urbanism and the environment has increased the pressure on those who assess and decide. Perhaps that is why the possibility of delegating powers over project approval has, in this decree-law, assumed an important role, although it is almost never mentioned. Under the terms provided in the current Decree-Law, we may have total delegation of decision-making powers for projects to leaders, distancing decision-making from political power. It may be a debatable solution for politicians to relinquish responsibilities for project approval but retain the power to pressure those who should do it. Perhaps for this reason, it may be difficult for leaders to be willing to assume this responsibility. The increase in legal conflict, in recent years, between public entities and private ones has not helped either in the relationship between them or in achieving swift and positive outcomes. Some mention that Administrative Courts make municipal urban planning services seem efficient.

Forty years ago, technicians met with owners to discuss construction feasibility. Thirty years ago, the same happened accompanied by a technician, as the complexity of the procedures required. Twenty years ago, the meeting only happened if, in addition to the architect, a lawyer accompanied them. For the past ten years, the first contacts with municipalities are made by lawyers armed with Due Diligence to explain to the municipal technician their understanding of the applicable rules, supported by court decisions… These attitudes, leading to distrust in most cases without reason, do not bode well for decision times and lead municipalities and their employees to close themselves off and seek protection from potential liabilities. Forty years ago, public errors were assumed by public entities. Today, the responsibility lies with their employees, who therefore show reservations and very little openness to understandings that go beyond the strictest interpretation of the rule, even if it allows for that possibility. Common sense is no longer applied through judgments that have little openness to the discretionary powers of the State. As in everything, because they do not have the competence to decide on matters they do not master, such as heritage value, architectural features, urban context, typological morphologies, and other more generic concepts, the decision sometimes follows the easiest opinion and not always the most accurate one. On the side of promoters and designers, the “distrust” especially in licensing public authorities, is equally proportional to the “distrust” of municipal actors. However, private actors also have their weaknesses in presenting their ideas and projects. Some projects have flaws, which municipalities correct, and promoters accept as long as they are corrected within a reasonable timeframe.

The solution found in Simplex to almost exclusively transfer project and construction responsibilities to designers and builders does not simplify or contribute to a faster process or a good result. It is true that technical and construction responsibilities must be assumed by those who design and build. However, from the moment existing legislation is complex, inappropriate, and confusing, responsibilities must be weighed. How can an architect be expected to comply with the RGEU when it still requires the use of obsolete materials and construction processes? Transferring responsibilities to designers, without a prior check by Municipalities and passing these to verify legal compliance in the inspection of the work, certainly opens the door to a new world of uncertainties, risks, and conflicts. The reduction of prior control by municipalities must be accompanied by an increase in technician responsibility, and issues must be safeguarded for the model to work: projects must be more rigorous, rules on responsibilities and insurance altered, and, on the other hand, legality control in inspections must be careful but sensible.

Planning?… Another matter to be simplified concerns urban planning. The difficulty of planning by public entities is already old and understandable. The complexity of legislation, procedures (which establish monitoring by dozens of entities that take a long time to give opinions), makes it impossible to launch and approve a plan in a municipal term of office. It is not acceptable to take away from municipalities much of the competence to decide on their territory, imposing rules emanating from unelected entities that cannot have strategic programs beyond municipal ones. Execution Units cannot be a panacea to replace the inefficiency of Spatial Planning Plans. Both have different purposes and means to intervene in the territory, with Plans giving municipalities greater decision-making power and options for changing higher-level plans. Perhaps that is why they are so frequently blocked by different central power bodies. Execution Units have very little power to impose a political will stemming from an opportunity for change. The widespread idea (and perhaps rightly so) is that a Plan is a document waiting for promoters to arrive and that Execution Units are the compromise between all to ensure its implementation. So far, Execution Units have not gone beyond the necessary pro forma to escape the Plan and move on to a joint development. Simplex merely confirms that this is the case – an alternative to plans – and that if we format them as developments, we can then move on to more simplified procedures.

Decree-Law No. 10/2024, of January 8, is the fastest response found to reduce time in the short term, leaving the simplification of legislation, namely the RJUE and the RGEU, for other calendars, not “Greek” ones. The main situations causing difficulties in a municipality are intended to be simplified, the existence of various entities that pronounce on heritage, etc., in the hope that these rules will serve other municipalities. In the different areas, the State and private entities must find agreements on different matters and very clearly establish each one’s role in territorial management. There are matters that can only be up to the State, which must ensure compliance. Options are not made by imposition of a centralist State but through discussion and voting on the presented solutions. In this area of urban planning, it is essential that municipalities lead the planning process and, together with private entities, its implementation. In municipalities, councils must ensure in urban management:
• Public space;
• Buildings – facades, roofs, aesthetic of settlements, architectural harmony;
• Equipment;
• The valorization of the place’s identity, the articulation between built and cultural heritage.

The success or failure of this decree-law lies more in how technicians will read its text than in the will of its authors to simplify. Fears and suspicions about a project at the time of decision-making in the application of laws are always greater and override sensible thinking and the legislator’s will. It is the municipalities that put up additional defenses and precautions to protect themselves and end up bureaucratizing procedures. Because these behaviors are already foreseen, the decree-law provides, for the first time, the impossibility of using subterfuge to circumvent the legislator’s will… To the point we have reached…