USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
Energy Investment Activity (USAID EIA)
Contract Number AID-168-C-14-00002
Gap Analysis of Area of Spatial Planning in FBiH
Author: EIA Project Team
July, 2017
Implemented by: Advanced Engineering Associates International, Inc. (AEAI) USAID COR: Ankica Gavrilovic
This document is made possible by support from the American People sponsored by United States Agency for International Development (USAID). The contents of this document were prepared by and are the sole responsibility of Advanced Engineering Associates International, Inc., and do not necessarily reflect the views of USAID or the United States Government.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
OVERVIEW AND ANALYSIS OF THE SPATIAL PLANNING SECTOR IN THE FEDERATION OF BiH (FBiH)
1. THE ROLE OF SPATIAL PLANNING IN ENERGY INFRASTRUCTURE DEVELOPMENT
Spatial planning systems refer to the methods and approaches used by the public and private sectors to influence the distribution of people and activities in spaces of various scales. Spatial planning can be defined as the coordination of practices and policies affecting spatial organization. Spatial planning is synonymous with the practices of urban planning in the United States but at larger scales and the term is often used in reference to planning efforts in European countries. Spatial planning takes place on local, regional, national and international levels and often results in the creation of a spatial plan. Spatial plans may be developed for urban planning, regional planning, environmental planning, landscape planning, national spatial plans, or spatial planning at the Union level.1
The spatial planning area has an important role in facilitating and expediting construction in general, including the construction of energy infrastructure facilities. Construction of buildings/facilities cannot begin and the necessary permits cannot be obtained unless the building/facility is included in the appropriate spatial planning documentation. According to the EC Roland Berger Study/Report, spatial planning is one of the four steps in the permitting process2 for the construction of energy infrastructure projects, typical for all European Union member states.3 Since spatial planning has a similar role and importance in the permitting process in Bosnia and Herzegovina, it has been analysed as a separate step in this analysis.
The spatial planning area in the Federation of BiH cannot be discussed without looking at the overall situation in this area in Bosnia and Herzegovina and the region, or without taking into account the role of spatial planning for the development of the energy sector in the country and the region. This approach is mandated by BiH’s chosen path to EU membership, as well as the fact that neighbouring countries are already EU members (Croatia) or are moving in that direction (Serbia). In addition, BiH is also a party to the Energy Community Treaty, which means it is obliged to continuously fulfil the responsibilities and standards issuing from Treaty membership, including in the area of permitting energy infrastructure.
1 https://en.wikipedia.org/wiki/Spatial_planning 2 For the purpose of this analysis, the term “permitting process” is used to define the steps that directly affect the course of the project - from identification of the need to expand energy infrastructure to the phase of using the constructed facility. 3The methodology for presenting relevant information about the four-step permitting process typical for all EU countries is defined in the EC Roland Berger Study/Report titled “Permitting procedures for Energy Infrastructure Projects in the EU: Evaluation and Legal Recommendations,” dated 31 July 2011 (the Berger Study).
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
Spatial planning development directions and measures in the context of regional and European integration are contained in the document – European Spatial Development Perspective (ESDP) – agreed at the Informal Council of Ministers responsible for Spatial Planning (CEMAT) in May 1999. The ESDP notes that measures of Trans-European Networks (TENs) (transport, communications and energy supply infrastructure) in the energy sector “influence spatial organization through two main mechanisms: the production and transmission of energy influencing land use and the distribution of energy and consumption technologies influencing the organization of the territory via induced changes in consumers’ behaviour. For both electricity and gas trans-European networks, the routing of lines or establishment of power plants, for example, fundamentally impact on local planning.4”
The ESDP further states that “pparticularly promising, from a spatial development perspective, are renewable energies (they represent on average 25.4 % of the total EU consumption5). On the one hand, they help to reduce the environmental impact of the energy sector. On the other, they favour power system decentralization and locally applicable solutions more or less independent of the distribution network, thereby reinforcing the flexibility of the system and the economic power supply to remote areas.”6
The ESDP therefore proposes that EU member states “also take into consideration the European dimension of spatial development in adjusting national spatial development policies, plans and reports. Here, the requirement for a ‘Europeanization of state, regional, and urban planning’ is increasingly evident. In their spatially relevant planning, local and regional government and administrative agencies should, therefore, overcome any insular way of looking at their territory and take into consideration European aspects and inter-dependencies right from the outset.”7
2. COMPETENCE FOR REGULATING SPATIAL PLANNING IN THE FEDERATION OF BiH (FBiH)
According to the interpretation of the Constitutional Court of BiH, as stated in Judgment No. U-10/04 from 13 December 2004 (the Judgment), competence for legal regulation of spatial planning is shared between FBiH (determining key policies) and the cantons in FBiH.
Prior to this Judgment, the spatial planning sector in FBiH was regulated by Federation law, i.e., at the level of FBiH. However, deciding on an application to determine constitutionality, in its Judgment, the FBiH Constitutional Court found the Law on Spatial Planning of FBiH (“Official Gazette of FBiH,” No. 52/02) to be unconstitutional. In the reasoning of its Judgment, the FBiH Constitutional Court found that FBiH could not have adopted the Law on Spatial Planning on the basis of the exclusive responsibility criterion, i.e., responsibility for “making economic policy,
4 ESPD, 2.2.2 (39) – Trans-European Networks (TEN), pp. 13-14. 5 www.ec.europa.eu/eurostat (data for 2014). 6 ESPD, 2.2.2 (39) – Trans-European Networks, page 14. 7 ESPD, 4.5 (185) – The Application of the ESPD in the Member States, page 39.
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including planning and reconstruction, and land use policy on the Federation level.”8 Furthermore, in the Judgment’s reasoning, the FBiH Constitutional Court noted that, “spatial planning undoubtedly represents an important element of these relations. The FBiH Constitutional Court is, therefore, of the opinion that the FBiH Parliament has constitutional grounds to further regulate these issues, but only to the extent to which their scope and content coincide with the level of policy making in these relations, as explicitly defined by the FBiH Constitution.”
In essence, the Judgment determined that FBiH was responsible for the legal regulation of spatial planning at the level of “key policy making in these relations,” meaning that the whole of spatial planning in FBiH was to be jointly regulated by Federation and cantonal authorities.
Following the Judgment, FBiH adopted the current Law on Spatial Planning and Land Use at the Level of FBiH in 2006 (the Federation Law),9 which is the subject of this analysis, as well as relevant regulation adopted at the FBiH level. In addition, the analysis will consider and compare the laws and regulation in the spatial planning sector in four pilot cantons in relation and in contrast to FBiH legislation. The pilot cantons are: 1) Central Bosnia Canton (CBC), Tuzla Canton (TC), Zenica-Doboj Canton (ZDC), and Herzegovina-Neretva Canton (HNC). Finally, this analysis will consider the degree of implementation of legal regulations in practice.
3. THE LEGAL FRAMEWORK AT THE FBiH LEVEL
3.1 The Federation Law
In terms of spatial planning, the Federation Law defines, among other things, the fundamental principles, as well as the type and content of spatial planning documents issued in FBiH.
Principles:
The Federation Law defines the following fundamental objectives: “2) the protection of inherent spatial values and environmental protection and improvement; 4) harmonization of interests of space users and action priorities of importance for FBiH; 5) harmonization of cantonal planning documents with FBiH planning documents and of planning documents between cantons; 6) harmonization between planning documents of the Federation and Republika Srpska; 7) harmonization between planning documents of Bosnia and Herzegovina and planning documents of neighbouring countries; 9) establishment of a spatial information system in line with FBiH competences for the purposes of planning, land use and spatial preservation in FBiH.”10
Planning documents:
8 Article III.1.c) of the FBiH Constitution, in conjunction with Amendments VIII and XXXIX to the FBiH Constitution. 9 Law on Spatial Planning and Land Use at the Level of the Federation of Bosnia and Herzegovina (“Official Gazette of FBiH,” Nos. 02/06, 72/07, 32/08, 4/10, 13/10, 45/10) (the Federation Law). 10 Article 3 of the Federation Law.
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The Federation Law mandates the adoption of the following planning documents, among others: “1) for the territory of the Federation - FBiH Spatial Plan; 2) for the territory of the canton - Cantonal Spatial Plan; 4) for municipalities (apart from municipalities that make up a city) - Municipal Spatial Plan; 5) for areas of significance for FBiH – Special Purpose Area Spatial Plan, etc.”11
Furthermore, the Federation Law stipulates that “the preparation and development of planning documents shall take into account: the public interest, the aims and objectives of spatial development; the coordination of sector policies; the harmonization of individual interests with the public interest; the strategic environmental assessment, and shall enable the checking of the justification, harmonization and feasibility of planned spatial solutions.”12
FBiH Spatial Plan:
In the hierarchy of spatial planning documentation in FBiH, the first and foremost for efficient space management and economic development is the FBiH Spatial Plan. Article 9 of the Federation Law stipulates that the “FBiH Spatial Plan shall determine the long-term spatial development objectives and measures in line with the overall planned economic, social and historical development of significance for the Federation, and shall guide the development of functions and activities in the territory of FBiH.” The FBiH Spatial Plan has been adopted for a period of 20 years.
Article 9 of the Federation Law stipulates that the FBiH Spatial Plan shall, among other things, determine “areas of significance for FBiH, and in particular: 1) economic infrastructure facilities and routes of international, national and Federation significance, as well as those of interest for two or more neighbouring cantons (roads, water, energy, telecommunications and other infrastructure); 2) spaces and areas of significance for FBiH as set out under Article 17 of the Federation Law; as well as 3) facilities and corridors of main infrastructure of significance to FBiH (water, traffic, energy, telecommunication and other infrastructure).” It should be noted, in this respect, that Article 17 of the Federation Law stipulates that an area of special significance for FBiH shall be determined, in particular for: “1) the construction area of large hydro-power facilities (above 30MW of installed capacity) as determined by the FBiH Spatial Plan...” [Emphasis added.]
Given the above, it is clear that the FBiH Spatial Plan and spatial plans for special purpose areas of significance for FBiH are of crucial importance for the construction of energy facilities and other energy infrastructure in FBiH (of national or Federation importance, or of importance for two or more cantons).
FBiH was legally bound to adopt the FBiH Spatial Plan within two years from the date of entry into force of the Federation Law,13 i.e., in the first half of 2008. However, even though more than eight
11 Article 7 of the Federation Law. 12 Article 8, Federation Law. 13 Article 111, Federation Law.
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years have passed since that deadline expired, to date the FBiH Spatial Plan has not been adopted. Thus, the interim solution set out under Article 115 of the Federation Law has become permanent. That Article 115 stipulates that “until the Spatial Plan of the Federation is adopted, the Spatial Plan of Bosnia and Herzegovina for the period from 1981 to 2000 shall be applied insofar as it does not contradict the Constitution of the Federation.”
Without the FBiH Spatial Plan, it is impossible to prepare an FBiH Spatial Report, another obligation of the Federation Law, and as it is impossible to assess the impact of implemented measures on spatial protection, preservation and planning in FBiH.
3.2 Proposed FBiH Spatial Plan for the period from 2008 to 2028 - Planned Energy Infrastructure
Pursuant to the Regulation on the Unique Methodology for Developing Planning Documents,14 a Proposed FBiH Spatial Plan for the period 2008-2028 was drafted (Proposed FBiH Spatial Plan), and was adopted by the House of Representatives of the FBiH Parliament in July 2014. Although three years have passed, the Proposed FBiH Spatial Plan has not been considered by the House of Peoples of the FBiH Parliament. In essence, the Proposed FBiH Spatial Plan recognizes “special purpose areas of significance for FBiH” and “spaces without the status of special purpose areas of significance for FBiH.” This concept foresees that the use of special purpose areas of “significance for FBiH” is to be planned only in the second phase of drafting individual spatial plans for “special purpose areas,” following the adoption of the FBiH Spatial Plan. In principle, this means that the Proposed FBiH Spatial Plan (significant potential) reserves space for power plants planned for special purpose areas “of significance for FBiH.” However, separate spatial plans for special purpose areas,15 which would truly enable construction, would be adopted only in the second phase. Accordingly, the construction of these plants cannot begin until special purpose area spatial plans are adopted, which in turn requires mandatory surveys and approval from cantonal legislative bodies, as per Article 19(2) of the Federation Law.16 It should be noted that the drafting procedure for the Proposed FBiH Spatial Plan included gathering opinions from all cantonal assemblies about the Proposed FBiH Spatial Plan, in line with Article 13 of the Federation Law. The Positive Opinion of the Central Bosnia Canton Assembly regarding the Proposed FBiH Spatial Plan (the Opinion), adopted at the 6th extraordinary session on 6 September 2012, was contested by the Central Bosnia Canton Assembly Croat Caucus before the Chamber for
14 “Official Gazette of FBiH,” Nos. 63/04, 50/07 and 84/10. 15 Article 17 of the Federation Law: “The FBiH Special Purpose Areas Spatial Plan shall be developed for areas of significance for FBiH as identified in the FBiH Spatial Plan.” 16 The power plants located in “special purpose areas of significance for FBiH,” according to the Proposed FBiH Spatial Plan are, for example, HE Ustikolina, HE Vranduk, HE Han Skela/Bravice, HE Vinac, HE Babino Selo, HE Ugar Ušće, HE Ivik.
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the protection of vital interests of the FBiH Constitutional Court. The application cited as contentious the issue of communications and transport infrastructure, as well as the manner of connecting certain residential settlements, which, according to the appellant, were not treated uniformly in the Proposed FBiH Spatial Plan and could be in breach of the Central Bosnia Canton Spatial Plan (adopted earlier). The Judgment of the Chamber for the protection of vital interests of the FBiH Constitutional Court17 found that the Opinion violated the vital national interest of the Croat people (with respect to the right to take a position on matters subject to the Opinion), but the Chamber also pointed out that the Proposed FBiH Spatial Plan had not been subject to its assessment.
Since the FBiH Spatial Plan has not been adopted to date by the House of Peoples of the FBiH Parliament, the interim solution has been for the FBiH Parliament to designate areas “of significance for FBiH,” where this status is accorded at the proposal of the FBiH Government.18 According to the data of the Federation Ministry of Spatial Planning (FMSP), the Proposed FBiH Spatial Plan includes the energy facilities contained in the following documents: 1) Regulation on Determination of Works and Buildings for which the Federal Ministry of Spatial Planning Issues the Urban Permit and/or Location Information;19 2) Strategic Development Plan for the Energy Sector of the Federation of BiH; 20 3) Decision of the Government of the Federation of BiH on public interest status and commencement of preparations and construction of priority power facilities in the Federation of BiH;21 4) Catalogue of construction plans for power facilities in the Federation of BiH;22 5) FBiH Law on Electricity;23 6) BiH Energy Sector Study;24 and 7) Treaty Establishing the Energy Community for Southeast Europe.25
17 FBiH Constitutional Court Judgment No. U-39/12 of 18 February 2015 18 Article 115 of the Federation Law: “Until the Federation Spatial Plan is adopted, areas of significance for the Federation shall be designated by the Parliament at the proposal of the Government.” Some of the decisions of the FBiH Parliament designating special purpose areas of significance for FBiH are: 1) Decision Designating the Una River Basin an Area of Significance for the Federation of Bosnia and Herzegovina (“Official Gazette of the Federation of BiH,” Nos. 32/04, 80/07); 2) Decision to Commence Drafting the Spatial Plan for Special Purpose Area of Significance for the Federation of Bosnia and Herzegovina - Una River Basin for the Period from 2007 to 2027 (“Official Gazette of the Federation of BiH,” No. 79/07); 3) Decision Designating Igman, Bjelašnica, Treskavica and the Rakitnica River Canyon (Visočica) a Special Purpose Area of Significance for the Federation of Bosnia and Herzegovina (“Official Gazette of the Federation of BiH,” Nos. 8/05, 66/08); 4) Decision to Commence Drafting the Spatial Plan for the “Vranica” Special Purpose Area of Significance for the Federation of Bosnia and Herzegovina for the period from 2008 to 2028 (“Official Gazette of the Federation of BiH,” No. 48/10). 19 “Official Gazette of FBiH,” No. 32/14. 20 Adopted by the FBiH Parliament in March 2009. 21 “Official Gazette of FBiH,” No. 8/10. 22 Adopted by the FBiH Government in March 2010. 23 “Official Gazette of FBiH,” Nos. 41/02, 38/05. 24 Final Report, MOFTER, 2008. 25 Treaty signed on 25 October 2005; entered into force on 1 July 2006; “Official Gazette of BiH,” No. 09/06.
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According to the FMSP, the Proposed FBiH Spatial Plan includes numerous power facilities.26
3.3 Regulation at the level of FBiH
Regulation on the Unique Methodology for Drafting Planning Documents (Methodology Regulation)27
The Methodology Regulation stipulates the procedure for preparing and drafting, and the contents of planning documents at all levels of spatial planning in FBiH. It is essentially a technical document that regulates the procedure for spatial planning and formulating the need to gather all relevant data from different sources. Those responsible for developing planning documentation, from the municipal to the Federation level, are obliged to apply this methodology when preparing and drafting planning documents from within their competences.28 The Methodology Regulation defines the two basic phases in spatial planning:
a) preparation and development of the spatial survey phase; and b) drafting the proposed spatial plan phase.
For the spatial survey, as the first and key phase in the procedure, Article 12 of the Methodology Regulation stipulates the use of the following sources:
“ - documentation, plans and results of surveys conducted for the purpose of spatial plans for broader and narrower areas (Bosnia and Herzegovina, the Federation, cantons), - documentation and surveys conducted for the purpose of development strategies: of Bosnia and Herzegovina . . . and the Federation and its cantons, - surveys in specific fields (water management, transport, energy, agriculture, forestry,
26 Thermal power plants: TE Tuzla, blok 7, TE Tuzla, block 8, TE Tuzla C kombi c. [cogeneration], TE Tuzla B-1-Banovići, TE Kakanj, block 8, TE Kakanj A kombi c., TE Kakanj B, TE Bugojno 1 and 2, TE Kongora, TE Kamengrad 1 and 2, TE-TO Zenica.
Hydropower plants: HE Mostarsko Blato, RHE Vrilo, RHE Kablic, HE Glavatičevo, HE Bjelimići, HE Kruševo with HE Zeleni vir, HE Čaplje, as well as hydropower plants located in planned special purpose areas of nature preservation, such as: HE Ustikolina, HE Vranduk, HE Han Skela/Bravice, HE Vinac, HE Babino Selo, HE Ugar Ušće, HE Ivik.
Wind power plants: VE Podveležje-M.Glava, Poljice, VE Podveležje-Sv.Gora, Mali Grad, VE Velika Vlajna, VE Mesihovina, VE Livno ( Borova Glava), VE Pločno/Rujište, VE Debelo Brdo, VE Mokronoge, VE Srdani, VE Poklečani, VE Planinica, VE Kamena, VE Bahtijevica/Ratkamen, VE Crkvine, VE Velja Međa, VE Ivan Sedlo, VE Gradina, VE Orlovaća. Apart from the above-listed facilities, the Federation of BiH Spatial Plan also includes 22 small hydropower plants with capacity of 5 MW and above. 27 “Official Gazette of FBiH,” Nos. 63/04, 50/07 and 84/10. 28 FBiH Spatial Plan, cantonal spatial plan, municipal spatial plans, special purpose area spatial plans, urban plan, and detailed planning documents: zoning plan, regulation plan and urban planning project.
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mineral deposits, natural and cultural-historical heritage, etc.), - statistics from both the Federation and cantonal institute for statistics, data from the Federation Development Planning Institute and findings on doing business from relevant agencies, - development strategies and plans for individual areas, - documentation and data from various space users (businesses, corporations, small and medium enterprises, non-governmental organizations, civil society, international organizations, etc.) - data and documentation from state, Federation, regional and cantonal institutions (seismological, hydro-meteorological, agro-pedological, geological institutes, health protection institutes, institutes for the protection of cultural-historical heritage, natural heritage, museums, etc.) and agencies, - prior spatial planning documentation for the area in question or its parts, - other sources that may be useful in preparing and drafting the Spatial Plan (forestry survey, water management survey, various studies, specialized and other reports, data from the cadaster, regulations on spatial planning, etc.).
Depending on the type of spatial planning document, research is conducted to prepare the Spatial Survey, and studies are done, including any annexes, appendices, specialized reports, documentation on land use and ownership, and the like. When information is lacking for specific areas of special significance for development planning, research is conducted for the purpose of special studies, reports and specialized reports in individual fields, so that concrete problems relating to the space may be resolved.”
In brief, according to the Methodology Regulation, the spatial survey is the initial document required before commencement of activities on any other planning document and forms the basis for the drafting every individual spatial plan. The spatial survey that forms the basis of every planning document provides a baseline survey, the aims of spatial development, the objectives of spatial development, the basic concept of spatial development, and a spatial vulnerability study.
Article 21 of the Methodology Regulation stipulates the obligation to “define energy sources and energy needs of the population in the planning period, and determine energy generation and transmission facilities.”
4. LEGAL FRAMEWORK IN THE CANTONS
This section of the analysis of the spatial planning sector in FBiH compares and analyzes solutions contained in laws on spatial planning in four selected cantons: the spatial planning laws of the Tuzla Canton (TC),29 the Zenica-Doboj Canton (ZDC),30 the Central Bosnia Canton (CBC),31 and the
29 Law on Spatial Planning and Construction (“TC Official Gazette,” Nos. 6/11, 4/13, 15/13, 02/16). 30 Law on Spatial Planning and Construction (“ZDC Official Gazette,” Nos. 1/14, 04/16). 31 Law on Spatial Planning (“CBC Official Gazette,” No. 11/14).
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Herzegovina-Neretva Canton (HNC).32 The laws were analyzed in terms of their compliance with the “basic principles” set out in the Federation Law and the degree of their mutual harmonization.
4.1. Structure, definitions, principles
The analyzed cantonal laws of CBC, TC and ZDC on spatial planning (cantonal laws) are fairly recent and have an innovated structure compared to the initial versions of cantonal spatial planning legislation. They were adopted following the adoption of the new Federation Law in January 2006 and its subsequent amendments. The HNC Law on Spatial Planning was adopted in 2004, two years before the Federation Law.
The cantonal laws contain definitions of basic terms such as space, settlement, sustainable development, construction land, protection belt and protection zone, public interest, etc.
4.2. Spatial Planning
According to the provisions of all four cantonal laws, construction is permitted only on land designated as construction land. These cantonal laws, as well as the Federation Law, provide for the possibility of derogation from this rule in the case of construction of “highway and regional infrastructure,” including energy infrastructure. Furthermore, the analyzed cantonal laws do not allow construction on forest and agricultural land, except in cases where such an exception is provided by Law.
32 Law on Spatial Planning (“HNC Official Gazette,” Nos. 4/04 and 4/14).
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4.3 Planning Documents
The ZDC, TC, and CBC cantonal laws stipulate the same types of planning documentation, dividing it into developmental, detailed and other spatial planning documents. Furthermore, the ZDC and TC laws contain identical definitions of developmental planning documents (cantonal spatial plan, municipal spatial plan, special purpose area spatial plan, and urban plan), as well as detailed planning documents (zoning plan, regulation plan and urban development plan). The CBC Spatial Planning Law does not contain these definitions. The HNC Law does not define the “zoning plan” as a type of detailed plan, as the Federation Law and other cantonal laws do.
In CBC33 and ZDC34, development plans are adopted for a period of 20 years at most, in TC for a period of 10 to 20 years, and in HNC for a period of up to 10 years.
4.4 Cantonal and Municipal Spatial Plans
Cantonal spatial plans adopt, adapt, expand and augment planning solutions from the FBiH Spatial Plan relevant for the canton.35 Spatial plans in all cantons are adopted for their territory by the Cantonal Assembly, at the proposal of the Government. All cantonal laws stipulate the obligation of conducting public debates on proposals for cantonal spatial plans.
The TC and ZDC Laws provide for obtaining the opinion of the FMSP and municipal councils prior to determining the proposed TC and ZDC spatial plans.36 Article 21 (2) of the CBC Spatial Planning Law also stipulates the obligation to obtain an opinion from the FMSP “on compliance of the plan with valid spatial planning documentation on planning and land use at the FBiH level.” The CBC Law does not stipulate the obligation to obtain opinions from municipal councils regarding the proposed CBC Spatial Plan. Finally, Article 13(1) of the HNC Spatial Planning Law stipulates “obtaining the approval of the FMSP that the HNC Spatial Plan is in compliance with the FBiH Spatial Plan, the FBiH Program of Spatial Planning Measures and provisions of special laws and regulations relevant to areas of significance for spatial planning (agriculture, forestry, energy, transport and communications, etc.)” The HNC Law also requires “obtaining opinions from local self-governance units of the Canton.” Local self-governance units in HNC are municipalities and the City of Mostar.
33 CBC Law on Spatial Planning, op. cit., Article 21. 34 ZDC Law on Spatial Planning and Construction, op. cit., Article 24, . 35 Definitions from Ibid., ZDC Law, op. cit., Article 28; CBC Law, op. cit., Article 20; TC Law, op. cit., Article 29; and HNC Law, op. cit., Article 12. 36 ZDC Law, op. cit., Article 28, paragraph 5, and TC Law, op. cit., Article 29, paragraph 5.
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Cantonal Spatial plans exist in CBC – Spatial plan of CBC 2005-2025,37 TC – Spatial plan of TC 2005-2025,38 and ZDC – Spatial plan of ZDC 2009-2029.39 The spatial plan in HNC is being drafted.
Municipal spatial plans are adopted by municipal councils with prior approval from the cantonal ministry confirming the municipal spatial plans’ compliance with the cantonal spatial plan and other regulations. Municipal spatial plans contain, among other things, a system of settlements ranked by significance, a survey of spatial development for non-urban areas, structures and routes of roads and other infrastructure of significance for FBiH, the canton, and the municipality, with protective infrastructure belts (transport, water management, energy, telecommunications and other infrastructure), environmental measures, measures for the protection of natural and cultural- historical heritage, conditions for use, construction, planning and protection of space, as well as other elements of importance for the territory of the municipality.
The period of validity of municipal spatial plans in CBC, TC and ZDC is twenty years, and in HNC ten years.
In accordance with the Federation law, the cities of Mostar and Sarajevo require an adoption of an Urban plan of the city. However, Article 9 of the CBC Law requires that a Spatial Plan of the City of Mostar should be adopted.
4.5 Cantonal and Municipal Special Purpose Area Spatial Plan
Article 18 of the Federation Law stipulates that a “canton may adopt a special purpose area spatial plan for areas of significance for the canton, if the cantonal spatial plan determines the existence of such a need and if the area in question has not been designated as an area of significance for FBiH. However, cantonal laws regulate this issue in different ways.
The TC and ZDC Laws contain provisions in compliance with the Federation Law and stipulate that special purpose area spatial plans are adopted by the canton for areas of special significance for the canton if such an obligation is stipulated in the cantonal spatial plan and if the area in question has not been designated an area of special significance for FBiH. The CBC and HNC contain a somewhat different formulation by which “special purpose areas” are determined by the canton without the determinant “unless such an area has been determined as an area of special purpose for FBiH” as defined by the Federation Law and the laws of TC and ZDC. Thus, Article 24 (1) of the CBC Law stipulates that:
“A Special Purpose Area Spatial Plan shall be adopted for an area of significance for the Canton if such an obligation is determined in the Cantonal Spatial Plan.”
37 CBC Official Gazette, No. 3/09. 38 TC Official Gazette, No. 9/06. 39 ZDC Official Gazette, No. 4/09, 6/09, 5/10.
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The cantonal laws also differ in terms of the areas that may be designated cantonal special purpose areas. Thus, according to the TC and ZDC Laws, cantonal special purpose areas are to be determined for:
- areas of exceptional natural or cultural-historical significance;
- the hydro-accumulation catchment area for regional water supply for two or more municipalities;
- areas of mineral ores exploitation in the territories of two or more municipalities;
- areas for sports, recreation and spas.40
The CBC Law does not provide an exhaustive list of areas that may be designated cantonal special purpose areas, but only stipulates the following in Article 24 (2):
“A special regime of preservation and use of protected natural resources, historical sites and townscapes, water supply sources, thermal and mineral water sources, agricultural land, and recreational areas and spas shall be determined for special purpose areas.”
The HNC Law, however, stipulates a much broader list of areas that are to be designated cantonal special purpose areas. Article 14 (1) of the HNC Law reads: “The designation of a special purpose area shall apply in particular to:
▪ particularly valuable structures, natural and other areas designated as such by the Cantonal Spatial Plan, ▪ areas of exploitation of mineral ores, water supply sources, thermal and mineral water sources, forests, agricultural land, recreational areas and spas, ▪ construction areas of hydropower structures (up to 30 MW of installed capacity), ▪ hydro-accumulation catchment areas for regional water supply when two or more municipalities have not secured joint water supply, ▪ inter-cantonal routes and structures (roads and their facilities, airports, etc.), ▪ hydro melioration systems in areas of up to 2,000 ha, ▪ especially vulnerable areas (flooding zones, barren land, landslide areas, etc.), if two or more municipalities have not secured protection”
Furthermore, the TC and ZDC Laws contain identical provisions requiring that an opinion is obtained from the municipality concerned by the planning document, before the proposed cantonal special purpose area spatial plan is mandated. The CBC and HNC Laws contain no such provision.
40 ZDC Law, op. cit., Article 31 and TC Law, op. cit., Article 32.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
The spatial plans for special purpose areas of significance for the municipality contain the same elements as cantonal special purpose area spatial plans and are adopted in line with the same procedure as the municipal spatial plan. The TC Law does not recognise the category of municipal special purpose area spatial plans, while the CBC, ZDC, and HNC Laws do. Provisions on spatial plans for special purpose areas of significance for the municipality are contained in Article 26 of CBC law and Article 34 of the ZDC law, while Article 16 of the HNC law contains the same provisions for municipalities and the City of Mostar.
5. CONCLUSIONS
• The failure to adopt the FBiH Spatial Plan is a serious obstacle to the construction of larger energy infrastructure facilities in FBiH and BiH, and to the overall economic development of the country. Therefore, the entity spatial plans should contain facilities of interest for the entire country, or both entities, designated as such through prior agreement between the entities. Furthermore, entity spatial plans should also include energy infrastructure facilities affecting neighboring countries and the region (Serbia, Croatia, Montenegro), which also require agreement between the state, entity and local authorities, on the one hand, and competent authorities from neighboring countries, on the other. Finally, the FBiH Spatial Plan should also contain facilities of interest for two or more cantons in the Federation of BiH. In summary, the FBiH Spatial Plan is the FBiH spatial development plan and, as such, aims to identify the greatest energy potential and use spatial planning to define the strategic direction of the future development of the energy sector through optimal use of resources in the interest of the majority of citizens, while balancing diverse interests.
• Although the Socialist Republic (SR) BiH Spatial Plan is formally in force, this is a document adopted in 1981 for the territory of the then SR BiH, which was one of the republics that made up the unique state of the SF Republic of Yugoslavia, with a completely different administrative organization, without entities or cantons. Besides, contemporary power generation technologies that use renewables were unknown at the time, so it is only natural that the Plan does not contain plans for these sorts of facilities. It is therefore doubtful whether solutions from the SR BiH Spatial Plan should have been applied as a replacement for the FBiH Spatial Plan for a period of almost nine years.
• In addition to this, some cantons in FBiH have adopted cantonal spatial plans,41 but some still have not. Pursuant to the Federation Law, “cantonal spatial plans shall be drafted based on the FBiH Spatial Plan and the Program of Measures for the area concerned.”42 This legal provision means that cantonal spatial plans should primarily be based on solutions from the FBiH Spatial Plan and should further develop and augment planning commitments defined at the FBiH level for the territory of the canton in question. In the absence of the FBiH Spatial Plan, which, as the spatial plan of one of the BiH entities and the wider community, should take into account state,
41 The Sarajevo Canton, Zenica-Doboj Canton, Tuzla Canton, Una-Sana Canton, Bosnian-Podrinje Canton have adopted cantonal spatial plans. 42 Article 14, paragraph 1 of the Federation Law
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
entity, inter-cantonal and regional interests, it is unclear how the cantons are to implement spatial planning while at the same time recognizing the interests of other cantons and the broader interest articulated through the interest of FBiH and BiH as a whole. At the same time, the delay in adoption of the FBiH Spatial Plan that lasted for several years has led to a situation where some cantons have opted to enact their own spatial plans. As a further step, some cantons have adopted separate bylaws by which certain energy facilities, whose construction according to the Federation law is under FBiH jurisdiction, have been declared to be facilities of cantonal importance, thus placing them under cantonal jurisdiction. An example of this is HNC, where a Regulation on buildings and works of cantonal importance43 puts construction of power plants over 5 MW of installed power under cantonal jurisdiction, while, at the same time, the Regulation on Determination of Works and Buildings for which the Federation Ministry of Spatial Planning Issues the Urban Permit and/or Location Information puts such facilities under the jurisdiction of FBiH.44
• From all of the above, we can conclude that to date, FBiH (as well as BiH as a whole) has not articulated the strategic direction of development for the energy sector and that the construction of larger energy infrastructure projects would not be possible without the adoption of the FBiH Spatial Plan. Although the construction of some larger infrastructure projects of interest for FBiH and BiH requires a separate spatial plan for a special purpose area of interest for FBiH (e.g. the construction areas of large hydropower structures - of more than 30 MW installed capacity), the precondition for their adoption is the adoption of the FBiH Spatial Plan, which is supposed to determine these areas beforehand.
• Furthermore, cantons in FBiH differently regulate which areas are designated special purpose areas of interest for the canton. While some have only a general provision about what a cantonal special purpose area should regulate, others include a long list of resources that, pursuant to FBiH laws and by their nature, may be designated of interest for both FBiH and the state. Different approaches to the formulation of these questions may cause uncertainty over jurisdiction between various levels of government in FBiH (e.g., between a canton and FBiH), which could further negatively influence interest in investment in FBiH. We can, therefore, conclude that differing provisions of cantonal laws that are formulated differently than the Federation Law, as well as the inter-cantonal lack of harmonization, may present a future obstacle to the implementation of energy projects in FBiH.
• In summary, the failure to adopt the FBiH Spatial Plan as an overarching strategic document, whose primary aim is to integrate the space of FBiH and define the direction of economic development through inter-sectoral and regional harmonization, is the most serious obstacle to the construction of energy infrastructure and the development of the energy sector in FBiH. The
43 HNC Official Gazette, No. 4/05. 44 Representatives from the Federation Ministry of Spatial Planning believe that the existing methodology for the creation of spatial planning documents, that is, the procedure that precedes the adoption of spatial planning documents is very complex, especially in the face of dynamic social development. As such, they believe that the current methodology is one of the reasons for the slow adoption of spatial plans. However, cantonal representatives consider this methodology adequate and completely in line with European standards and point out that spatial plans, due to their significance, should not be adopted in any other way.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
adoption and implementation of cantonal spatial plans in the absence of the FBiH Spatial Plan, as well as the implementation of the dated and obsolete SR BiH Spatial Plan from 1981, have for years been insufficient substitutes for the missing FBiH Spatial Plan; and, what is more, may be harmful in the long run. It can be particularly harmful for FBiH (and BiH) that resources at the local and cantonal level (e.g., small hydropower plants) are used without prior analysis or cooperation with other cantons and entities as there are very few watercourses whose use would not affect the wider area, meaning other cantons and entities. The construction of energy infrastructure restricted exclusively to the local level is often non-transparent, without clear or harmonized interests with other stakeholders in the country and region; it does not provide the basis for optimal use of resources or a good investment climate.
Contract Number AID-168-C-14-00002 16
USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Spatial Planning in FBiH
6. RECOMMENDATIONS45
• The Proposed FBiH Spatial Plan for the period from 2008 to 2028 should be adopted by the House of Peoples of the FBiH Parliament without delay.
• As soon as the FBiH Spatial Plan is adopted, the drafting of spatial plans for special purpose areas of interest for FBiH should commence, reserving space for potential construction of energy capacities of interest for FBiH.
• After the FBiH Spatial Plan is adopted, cantons in which cantonal spatial plans are already adopted should harmonize their adopted cantonal spatial plans with the adopted FBiH Spatial Plan. This harmonization procedure should also be carried out on the level of municipalities and cities. In addition, it is also necessary to adopt spatial plans in cantons and municipalities that still do not have them.
• All cantonal spatial planning and construction laws, as well as all necessary bylaws, should be harmonized with the Federation Law, especially with regard to contradictory provisions of cantonal laws on defining and designating “special purpose areas of significance for the canton” as well as categorization of energy facilities that are of importance to FBiH and cantons.
45 Representatives from the Federation Ministry of Spatial Planning believe that, apart from the recommendations listed here, it is necessary to adopt a new Law on spatial planning and land use on the level of FBiH with the main goal of streamlining the procedure for adoption of new spatial planning documents and simplifying permitting procedures.
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