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04 October 2013
A decade of high economic growth in the Macau Special Administrative Region (MSAR), combined with intense speculation, has reinforced the urgency for a law governing the planning and coordination of the MSAR's limited urban space and promoting the harmonious and sustainable development of Macau by striking a balance between public and private interests. The need for coordination with China's central government policies and joint projects with Hong Kong and China has also made the need for a legal framework more urgent. Thus, following the revision of the Land Law, a new Urban Planning Law has been enacted.
The law deals with definitions, objectives, principles, typology and hierarchy of urban plans - all from a regulatory perspective, but with a master plan to establish strategic guidelines for the entire MSAR territory over detailed plans intended to specify the conditions for use and development of particular areas. To this end, the law binds public and private entities to urban plans, as well as determining the responsibility of the Land, Public Works and Transport Bureau for the monitoring and technical assessment of urban planning, with the aim of ensuring their effective implementation.
The law stipulates a procedural framework for the development of urban plans by the bureau, following a chief executive dispatch. The procedure shall be preceded by a period of disclosure and public consultation, as well as opinion and suggestion gathering from stakeholders in urban projects, resulting in a mandatory report by the bureau analysing the collected opinions. The law has also created the Urban Planning Council to assist the government by providing opinions regarding the preparation, execution, review and amendment of urban plans, as well as the procedures for issuing them.
The conditions for use and development of land are defined in the urban plans depending on:
For land where the development or modification of an urban plan has been decided, preventive measures (which must be duly substantiated and limited in time) may be established to avoid any changes that could affect the development or amendment of the plan. Measures may include:
Failure to comply with these preventive measures is an administrative offence punishable by a fine, fixed according to the type of violation and its perpetrator.
The law also foresees the possibility of expropriation for the effective implementation of urban plans, as well as the payment of corresponding compensation to individuals. In keeping with the MSAR Basic Law, the compensation payable for expropriation should correspond to the actual value of the property at the time of expropriation, and be freely convertible and paid without unjustifiable delay. The law limits expropriation for public use in case of a need to implement the urban plan, provided that the possibility of acquisition under private law has been exhausted.
The provisions of a detailed plan in violation of the provisions of the master plan, at the time of its publication, are null and void. The same goes for any provisions of urban plans that are prepared or amended in violation of the law as well as administrative acts performed in violation of urban plans or decisions on permit applications that violate the prohibitions, limitations or binding opinions deriving from preventive measures. The nullity of urban plans is declared by the government through supplementary administrative regulation, without prejudice (unless expressly stated otherwise) of administrative acts practiced on the basis of the plan.
Violating the law constitutes an administrative offence punishable by a fine of between Pte25,000 and Pte1.5 million, with a 25% increase on the lower limit in case of recurrence. The law also provides for the embargo and demolition of construction works, as well as the restoration of soil conditions where the works are incompatible with an urban plan or there is a breach of the prohibitions, limitations or binding opinions concerning preventive measures.
The law recognises the general guarantees of contesting administrative acts. It also adds special guarantees:
In both cases compensation may be payable for proven damages arising from the establishment of preventive measures under the law.
Fixing the amount of compensation was the main stumbling block in the debate of the law, particularly with regard to the documentary basis for the right to compensation. The government proposed that compensation should be subject to the existence of a building permit, while the construction sector pressed for payment to be based solely on the project blueprint. However, the government prevailed. Another point of contention was the method of calculating the compensation, which will be arbitrated by an ad hoc evaluation committee. To the extent that the creation of this committee (which is to comprise solely government officials) will be the MSAR government's responsibility, it was feared that the chosen criteria could lead to disproportionate compensation, which would deplete the public treasury.
The enactment of the new Land Law would be incomplete without regulating urban planning in such a small territory. The law is clear as to the structure of urban planning in Macau, but certain aspects still lack further regulation by the government, which in turn creates uncertainty on matters such as the arbitration of compensation. In this respect, the concerns raised by members of the MSAR Legislative Assembly will only be answered fully once the government has decided the criteria for calculating eventual compensation.
For further information on this topic please contact Pedro Cortés or José Filipe Salreta at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (email@example.com or firstname.lastname@example.org).
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