Area: Kultura
Competent authority: MK, MOP, MzI
EZU URL: .nan
Initiative ID: 121
Initiative accepted and completed: '2013-06-28'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2013-05-15'
Initiative published: '2013-05-15'
Initiative submitted: '2013-05-14'
Response from the competent authority: "Response from the Expert Service of the Directorate\
  \ for Cultural Heritage: Initiative 121In practice, we have encountered the problem\
  \ that encroachments that are not subject to a building permit but require a cultural\
  \ protection consent are treated differently from encroachments that are subject\
  \ to a building permit. We are referring in particular to the various types of excavation\
  \ on agricultural land in the context of agro-remediation and on forest land, for\
  \ which environmental permits must be obtained for entry. In the case of such interventions,\
  \ the law does not regulate in sufficient detail the procedure for obtaining a cultural\
  \ protection permit when the interventions are in the area of a cultural heritage\
  \ protection regime.If the Law on the Construction of Structures does not regulate\
  \ interventions for which a construction permit is not required and which do not\
  \ constitute the construction of structures, then the provisions of the Law on Agricultural\
  \ Land should apply to land filling on agricultural land, and the provisions of\
  \ the Law on Forests should apply to interventions on forest land (according to\
  \ the intended use). In addition to the special provisions, the above-mentioned\
  \ legislation should also regulate the procedures for obtaining consent for encroachment\
  \ into protected areas. This raises a problem where the special regulation does\
  \ not regulate the procedure for obtaining consent, nor does it refer to the provisions\
  \ of the special regulation. In our view, this is also the situation in the field\
  \ of cultural heritage protection.MK's replyAs you yourself note, interventions\
  \ not subject to a building permit are subject to special regulations, including\
  \ ZVKD-1 for protected areas of cultural heritage. The ZVKD-1 regulates independently\
  \ the procedures for obtaining cultural protection conditions and cultural protection\
  \ consent, both in cases where this is part of the building permit procedure and\
  \ for cases outside it. We also correct your statement that the PGI does not regulate\
  \ the obtaining of a cultural heritage consent in cases where a building permit\
  \ is not required. The PGI specifically obliges the owner to cooperate with the\
  \ competent authority for the maintenance of structures (Article 6 of PGI-1-NPB7)\
  \ that are protected under the rules on the protection of cultural heritage. For\
  \ these types of works, the procedure is laid down in ZVKD-1 and, in the case of\
  \ a cultural heritage object/area, a cultural protection consent must be obtained.Initiative\
  \ 121 According to Article 28(3) of the Act on the Protection of Cultural Heritage\
  \ (Official Gazette of the Republic of Slovenia No 16/08, 123/08 and 90/12), a cultural\
  \ protection consent for interventions for which a building permit is required is\
  \ issued as a planning consent in accordance with the regulations governing construction.\
  \ For the remaining interventions, the law does not lay down a procedure for granting\
  \ consent, nor does it refer to the provisions of other regulations. Therefore,\
  \ only the provisions of the General Administrative Procedure Act could be applied\
  \ in this respect, which is unacceptable for the rule of law.Response by MKS According\
  \ to ZVKD-1, a cultural heritage consent must be obtained for an \"intervention\
  \ in heritage\", which is defined by the law more broadly than construction. Interference\
  \ with heritage is defined as \"all works, practices which in any way alter the\
  \ appearance, structure, internal relationships ...\" (Article 3 ZVKD-1). This includes\
  \ surveys, embankments, excavations, clearing of river channels, etc. Some types\
  \ of interventions do not have their own procedures prescribed in special laws,\
  \ and ZVKD-1 cannot determine at which stage and in what way it is reasonable to\
  \ place a cultural heritage consent, but in order to ensure the protection of cultural\
  \ heritage, a cultural heritage consent must be obtained for interventions affecting\
  \ heritage.Initiative 121Under the provision of Article 29(1) of ZVKD-1, the cultural\
  \ heritage conditions of the institute must be obtained before a cultural heritage\
  \ consent is issued. It follows from this provision, read in conjunction with Article\
  \ 28(1) of the ZVKD, that cultural protection conditions must be obtained for any\
  \ intervention in the area, regardless of its complexity. In our view, such a general\
  \ provision is unnecessary, particularly in the case of interventions for which\
  \ no building permit is required, since even without specific conditions from the\
  \ Institute, the provisions of the spatial plan, as laid down in Article 29(9) of\
  \ the ZVKD, must be taken into account in the planning process. This only prolongs\
  \ the procedure.Reply from MKCultural protection conditions are a specification\
  \ of the protection regimes, which depends on the type of intervention. It is only\
  \ possible to determine what the intervention will be by means of a conceptual design,\
  \ sketch or description of the intervention, and it is therefore not possible to\
  \ determine in advance in a spatial planning act the treatment of a myriad of possible\
  \ interventions. To give an idea, let us take the example of the restoration of\
  \ the fa\xE7ade of a cultural monument with a richly decorative fa\xE7ade (structures,\
  \ wreaths, etc.). As such works are considered as maintenance works under the ZGO,\
  \ the intervention does not require an architect and does not require a building\
  \ permit. From the point of view of the protection of cultural heritage, such a\
  \ fa\xE7ade is an important element of protection which must be professionally carried\
  \ out and cannot be left to the private interest of the investor. It is therefore\
  \ important that such an intervention is carried out under the expert supervision\
  \ of the ZVKDS, even if it is not subject to a GD. We would like to point out that\
  \ in most cases the degree of complexity of the construction is equal to the degree\
  \ of interference with the protected elements, but in some cases it is a completely\
  \ unnecessary intervention from the point of view of the construction, but it may\
  \ represent a serious threat to the conservation of the heritage.The problem of\
  \ inadequate regulations in the field of cultural heritage may be all the greater\
  \ because, according to the practice of the judge, the project conditions almost\
  \ always also provide for archaeological investigations, which are usually linked\
  \ to relatively high financial resources and to a longer time, which is always problematic\
  \ in the case of construction, if the contractor does not meet the deadlines. It\
  \ is therefore necessary to define such interventions in the ZVKD in a more appropriate\
  \ way and to put them on an equal footing with interventions in other conservation\
  \ areas, such as water. The biggest problem we see is that the ZVKD can be understood\
  \ as meaning that a cultural protection consent cannot be obtained by silence, since\
  \ it does not refer to the provisions of the Act on the Construction of Objects.\
  \ According to Article 29(9) of the ZVKD, the conditions for issuing a cultural\
  \ protection consent are deemed not to be necessary if the institute has not issued\
  \ the conditions within 30 days of the submission of the application for the issue\
  \ of the conditions. However, if the conditions for granting a cultural protection\
  \ consent are the same as the cultural protection or design conditions, the time\
  \ limit for granting these conditions is unreasonably long and should be equated\
  \ with the time limit in the field of construction, where the time limit is 15 days.Reply\
  \ from the Ministry of the EnvironmentWith regard to the silence of the authority\
  \ and the consequent positive consent: the EU does not approve of this kind of automatism,\
  \ as there are two clearly unbalanced interests in the balance - private vs. public.\
  \ The amendment will equalise the length of time between the cultural protection\
  \ conditions and the cultural protection consent to 30 days. At the time of the\
  \ last amendment to the Law on Environmental Protection, when the time limits for\
  \ the issuance of cultural and environmental consents were shortened, we at MK seriously\
  \ opposed this proposal, as the drafter of the amendment to the law himself had\
  \ noted that the length of the procedures was caused by specialised regulations\
  \ which also allowed for a 60 + 60 day time limit (e.g. ARSO). Our regulation has\
  \ a reasonably long time limit, i.e. 30 days. We are firmly of the opinion that\
  \ quality project conditions take time to be prepared and that this is a maximum\
  \ of 30 days. As said, the cultural conservation conditions are a concretisation\
  \ of the conservation regime, which requires the conservator to see the actual condition\
  \ of the building on the ground (these are old buildings, which have been concretely\
  \ damaged by time), to study the documentation and then to draw up guidelines. With\
  \ the current organisation of the expert service, it is not possible to expect that\
  \ 15-day deadlines would allow for high-quality documents to be produced. We also\
  \ believe that it is more financially and time-efficient for the investor to obtain\
  \ quality cultural protection conditions within a reasonable timeframe than to proceed\
  \ with the preparation of project documentation without them, which does not take\
  \ into account the protection regimes, which in most cases leads to complications\
  \ in obtaining cultural protection consent.Initiative 121Furthermore, the ZVKD does\
  \ not specify what happens after the expiry of the timeframe for the issuance of\
  \ cultural protection conditions, or whether it is also considered that the consent\
  \ is granted. According to Article 30(2) of the ZVKD, consent is deemed to have\
  \ been granted if the cultural protection conditions have been obtained and if the\
  \ institute has not decided otherwise within 15 days of the application for consent.\
  \ It follows from the above provision that tacit consent cannot be obtained under\
  \ this provision at all, since it is a condition that cultural protection conditions\
  \ have been issued beforehand. In order to make the distinction between minor interventions\
  \ in cultural heritage protection zones in the field of obtaining planning conditions\
  \ and issuing consents more equal or appropriate, we propose the following amendments\
  \ to the ZVKD:- Amend or supplement the provision of paragraph 3 of Article 28 of\
  \ the ZVKD. For interventions for which a building permit is required, a cultural\
  \ conservation consent shall be issued as a project consent in accordance with the\
  \ regulations governing building, and for the remaining interventions as a ...consent,\
  \ unless otherwise provided for in this Act.The answer of the MK ZVKD-1 already\
  \ provides for it in this way.- amend or supplement the provision of Article 29(1)\
  \ ZVKD so that it reads as follows: \"For interventions for which a building permit\
  \ is required, before the cultural protection consent is issued, the cultural protection\
  \ conditions of the institute must be obtained in accordance with the regulations\
  \ governing the construction of buildings, insofar as this law does not provide\
  \ otherwise. For the remaining interventions, however, cultural protection conditions\
  \ are not obligatory.\"- Amend or supplement the provision of Article 29(9) of the\
  \ ZVKD to read as follows: \"If the institute has not issued cultural protection\
  \ conditions for interventions for which a building permit is required within 30\
  \ days of the application for the conditions, it shall be deemed that the conditions\
  \ for the issuance of a cultural protection consent are not required and the consent\
  \ is hereby granted. For interventions for which a building permit is not required,\
  \ the aforementioned time limit is 15 days.\"- Amend or supplement the provision\
  \ of Article 30(2) of the ZVKD to read as follows: \"If cultural protection conditions\
  \ have been obtained and if the institute has not decided otherwise within 15 days\
  \ after the application for consent has been submitted, the consent shall be deemed\
  \ to have been granted. \"Answer MKThe requirement of cultural protection conditions\
  \ is not an appropriate solution - see the reasoning above. On 29 May 2013, the\
  \ Ministry published on its website the Draft Law on Amendments and Additions to\
  \ the Law on the Protection of Cultural Heritage (ZVKD-1), which in Art. Article\
  \ 29 of the Law on Cultural Heritage, which, inter alia, regulates in more detail\
  \ the relationship between cultural protection conditions and cultural protection\
  \ consents, and, in the context of the removal of administrative obstacles, introduces\
  \ new paragraphs providing for the issue of a cultural protection consent already\
  \ on the basis of an application for the issue of cultural protection conditions\
  \ in the case of, the establishment finds that the development is acceptable and\
  \ that cultural heritage conditions are not necessary, or the establishment issues\
  \ a decision refusing to issue a consent on the basis of the receipt of an application\
  \ for cultural heritage conditions, if the establishment finds that the development\
  \ is not acceptable or feasible."
Text file: 121.txt
Title: Initiative to amend and supplement the provisions of the Act on the Protection
  of Cultural Heritage
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=121
