Proposal to amend the Act on spatial planning in relation to the Mining Act
 
The issue of spatial planning of interventions relating to the exploitation of mineral resources is not specifically defined in the Act on Spatial Planning (Official Gazette of the Republic of Slovenia No. 33/07, 108/09 and 57/12) - hereinafter referred to as the "ZPNačrt"). In this context, we mean that it is not clear from the existing provisions when implementing conditions can be determined already by a spatial plan and when a detailed spatial plan is therefore also necessary. In particular, it is not clear how to deal with cases where the development is an extension of a development for which the implementing conditions were already laid down before the entry into force of the ZPNačrt by means of general spatial planning acts, and where the planned extension is also to interfere with acquired rights. This is why we, the producers of project documentation for such interventions, are at a loss when faced with rigid state bureaucrats. This, in turn, provides the administrative authorities with a direct basis for bureaucratising individual matters.
The current practice is to plan such interventions by first drawing up a conceptual mining project, from which the norms and requirements of such a project are then transcribed into an implementing zoning act. This is not controversial if and when the intervention requires consents, which is not the case in cases where the intervention is not located within the protection regimes. In such cases, therefore, the spatial plan becomes a document which is an end in itself. It should be borne in mind that, under the new Mining Act, no permit is required for the execution of works, in the context of which the implementation of the implementing conditions is verified. This is particularly problematic given that such a spatial planning process takes several years, and time is money in business. It is therefore also necessary to integrate such interventions more appropriately into the ZPNačrt and, in particular, in a more appropriate connection with the Mining Act (Official Gazette of the Republic of Slovenia No 61/10, 62/10-corrected, 76/10 and 57/12) - hereinafter referred to as the Mining Act (ZRud-1).
At present, the only link between ZRud-1 and the regulations governing spatial planning is in Article 3, which is very general. In the following ZRud-1 there are some more general links between ZPNačrt and ZRud-1, which regulate the grounds for spatial planning (Article 11) and the content of spatial planning acts (Articles 8 and 35). However, there are no relevant links in the transitional provisions where existing interventions are to be defined. As a result, we have cases where the administrative authority has required a detailed spatial plan before granting a concession, despite the fact that an appropriate project has been submitted with all the requisite consents from the competent consents, even though it has no explicit legal basis for doing so. There is no direct link in the other direction. For example, according to Article 39(4) of the ZPNačrt, the municipal spatial plan is the basis only for the preparation of a project for obtaining a building permit under the building regulations, and not also for projects under the mining regulations. If this is the case, then the implementing acts for such interventions are already unnecessary on this basis, as they can only be implemented through building permit projects.
There is no doubt that mining operations are very specific, as they are usually time-consuming and require several phases of implementation, from exploration to extraction and rehabilitation. In view of this specificity, it would also be appropriate to regulate these interventions by means of specific provisions within the ZPNačrt. These interventions are usually very time-consuming and travel through space, from one plot of land to another. As a result, the regulations may also change several times during implementation. In the new regulations, however, these interventions are usually omitted or poorly defined in the transitional provisions. Therefore, in the case of extensions of these interventions, which are not in fact extensions, it is not clear how the implementing conditions are to be determined when the intervention has reached the boundary. If the holder of the mining right is obliged to carry out ongoing rehabilitation and to guarantee this by means of a bank guarantee, then it is only in exceptional cases that it is possible to speak of an extension of an encroachment. In any event, there can be no question of extending the operation if the reclamation has returned to its original use an area identical to that covered by the new concession. Nevertheless, such an operation is considered to be an extension. This lack of clarity in the law is being exploited by developers of land-use plans who are interested in the business.
Such interventions can be very simple, for example when they are small extensions for the purpose of carrying out final rehabilitation, or more complex, especially when they are located in areas with special legal regimes (water protection areas, Natura 2000, cultural heritage, etc.). It is therefore not possible at the spatial planning level to treat everything in the same way and to set the implementing conditions for all of them according to the same procedure. Usually, these are determined in reverse order, by transcribing them from the mining project into the implementing act, just so that the public is aware of them.
It follows from the above that the determination of the appropriate implementing conditions for such interventions is poorly defined in the ZPNačrt. We believe that the ZPNačrt should make it clear when implementing conditions for such and other interventions can be fully determined already by the municipal spatial plan (OPN) and when they must be further determined by the municipal detailed spatial plan (OPPN). This lack of clarity in the law is being exploited by the developers of spatial plans. Therefore, the law should at least provide an indicative definition of the above-mentioned ambiguities, taking into account the fundamental objectives and requirements of the law.
A new ambiguity in the field of spatial planning has been introduced by the new Mining Act (ZRud-1), which introduced mining concessions also for the rehabilitation of illegal mines. The basic question here is whether the zoning plan should also determine the intended use and implementation conditions for such cases and how this should be done, if the primary purpose of such rehabilitation is to return the degraded land to its original or primary use, and all the conditions of the intervention should follow this. In this respect, the competent ministry insists that such interventions must be subject to the same zoning and implementation conditions as would be the case for economic exploitation. In our view, however, this is not feasible, since the rehabilitation of an illegal development cannot follow the intended use for exploitation, but only the use that has been illegally encroached upon, and the implementing conditions must be left to the profession to define the extent and conditions of the development. In our opinion, the Ministry's insistence on the above position only means unnecessary bureaucratisation of such cases, which was not in the interest of the legislator, who, with the new ZRud-1, wanted to simplify the procedure for the rehabilitation of illegal quarries, of which there are several thousand in Slovenia. Therefore, the ZPNačrt should also be amended accordingly for such cases, so that such interventions are not left to the will of bureaucrats or the drafters of implementing acts. We believe that, as things stand, there are also many opportunities for systemic corruption.
In our opinion, certain amendments or additions should be made to the ZPNačrt and to the ZRud-1, both in the specific provisions and in the transitional provisions of the law, so that, for example, for existing mines, for which the implementing conditions have so far been determined by PUPs or OPNs, the conditions for expansions would be determined in the same way, provided that the total area of the proposed expansion does not exceed the threshold for which an environmental impact assessment is mandatory. The issue is relatively complex. We are therefore not in a position to propose specific amendments to the ZPNačrt on this occasion. Instead, we will propose specific amendments to the ZRud-1, because we are more familiar with this issue.
With this initiative, we wanted to draw attention to the current issue of spatial planning of mineral development. We expect an appropriate response from the competent authority on this initiative, which will make it clear whether the proposed initiative demonstrates a basis for amending the regulation in a way that will make it significantly easier for the user or interested party to access a specific right. In this context, the term "easier" is understood as meaning the time and resources required for the planning phase of a specific exploitation operation.