Ministério do Ambiente, Ordenamento do Território e Energia (Ministry of Environment Spatial Planning and Energy)
(This is not an official translation of the law)
The promotion of urban regeneration is a strategic goal and a national endeavour embraced in the Programme of the XIX Constitutional Government. In fact, the spatial planning policy of the Government prioritizes a focus on a paradigm of cities with coherent systems and living neighbourhoods.
Building retrofitting, in fact, makes up in Portugal only around 6.5% of the total activity of the construction industry, well below the EU average, which is around 37%. Moreover, according to Census 2011, there are around two million dwellings that require restoration, which represents around 34% of the national housing stock.
The amendment to Decree-Law No. 307/2009, of 23 October, which lays down the urban regeneration legal regime, introduced by Law No. 32/2012, of 14 August, represents a decisive step towards allowing urban regeneration to be faster and more dynamic, as this statutory instrument introduces more flexible and simple procedures for the creation of urban regeneration areas, creates a simplified procedure for prior control of urban planning operations and regulates the retrofitting of buildings or of building units, even if the latter are located outside urban regeneration areas, where the respective construction has been completed for at least 30 years and where restoration action intended to provide buildings with appropriate performance and safety features is deemed to be justified.
The review of the urban regeneration legal regime provided for in that statutory instrument strengthened the concept of “protection of existing dwellings”, already established in Decree-Law No. 307/2009, of 23 October. According to the specific regime of protection of existing dwellings, non-compliance with legal or regulatory rules that take effect subsequently to the original construction is allowed, insofar as the urban retrofitting operation does not originate or aggravate non-compliance with such rules or even allows the general improvement of the state of the building. Notwithstanding, non-compliance with such construction rules must be identified and justified by the technician responsible for the retrofitting project, in a letter of guarantee, its responsibility being reinforced, on the other hand, in particular for its statements.
The review operated under the referred Law No. 32/2012, of 14 August, is part of a wide series of reforms focused on the Governments’ clear target of reducing households’ indebtedness and unemployment, promoting the mobility of people, upgrading and revitalizing cities and making economic activities associated to the construction industry more dynamic.
In this broader context, urban retrofitting and the rental market are essential and strategic fields, and their close connection is unquestionable. For this reason, they were handled in an integrated fashion, the referred amendment to the urban regeneration legal regime having been articulated with the urban lease reform introduced under Laws No. 30/2012 and 31/2012, both of 14 August.
The relevance of urban retrofitting as a factor for the development of cities and economy advises its promotion to be encouraged further, through the adoption of additional measures to those provided for in Decree-Law No. 307/2009, of 23 October, as amended by Law No. 32/2012, of 14 August.
In this scope, by Order No. 14574/2012, of 5 November, of the Ministers of Economy, of Employment, of Agriculture and Sea, and of Environment and Spatial Planning, published in the Official Gazette, II Series, No. 218, of 12 November 2012, a Drafting Commission of a multidisciplinary nature was created (Commission) which undertook the mission to prepare a draft statutory instrument that established “Minimum technical requirements for the Retrofitting of Old Buildings”, an exceptional and temporary scheme that, in addition to measures laid down under Decree-Law No. 307/2009, of 23 October, as amended by Law No. 32/2012, of 14 August, is intended to exempt urban retrofitting works from certain technical construction rules, aimed for new constructions and not for the retrofitting of existing buildings, where such rules constitute a barrier to the encouragement of urban restoration.
This Decree-Law thus results from the work of the referred Commission, being adopted exceptional and temporary measures for administrative simplification purposes, that strengthen the target of effectively dynimizing administrative processes of urban regeneration.
Urban regeneration must be regarded as an economically viable reality in all long-established areas, and must be aimed for all populations and existing habitation, and not only for niche markets.
Solutions laid down in this Decree-Law assume a different principle than the one that has conducted the territory’s policy over the last few decades. Urban regeneration differs from new construction, and as such, it must be taken into account and governed according to its diversity. This time round, in line with several legislative procedures currently under way, such as the Basic Laws for Soil Policy, Spatial and Urban Planning, and the legal regime on Urban Planning and Building, a new vision is adopted, an evolving regeneration having been chosen, allowing the improvement of habitability conditions, in balance with existing dwellings and the economic capacity of owners.
As such, instead of focusing on new constructions, the Government’s spatial planning prioritizes regeneration via urban operations for the preservation, alteration, reconstruction and expansion, as best solutions for the country’s current situation.
The return of population groups to historic centres of urban areas, which today are depopulated and ageing, is thus promoted.
In this context, this Decree-Law provides for the temporary exemption from requirements laid down in special schemes on construction, insofar as, in any case, urban operations do not generate non-conformities, nor aggravate existing ones, or contribute to the improvement of safety and health conditions of the building or building unit.
As such, as far as the General Urban Building Regulation, approved by Decree-Law No. 38 382, of 7 August 1951, is concerned, technical requirements the compliance with which entails insuperable costs and which do not provide a genuine guarantee of the habitability of rehabilitated buildings, are waived. This waiver focuses in particular on aspects related to minimum habitation areas, headroom or installation of lifts.
Likewise, this scheme waives certain requirements resulting from legal regimes in force on accessibilities, acoustic requirements, energy efficiency and thermal quality, gas installation and infrastructures for telecommunications in buildings. However, this is without prejudice to the continued application of these regimes where this Decree-Law does not provide otherwise.
In order to safeguard investments made under this regime, it is expressly set out that retrofitting operations carried out that are exempted from requirements provided for herein are not affected by the expiry of the exceptional regime, insofar as a predominantly residential use is maintained.
This promotes an urban policy able to meet the needs and resources of the modern day, for buildings that already exist and which must be recovered, made appealing and capable of creating wealth now and in the future.
Self-government bodies of the Autonomous Regions and the National Association of Portuguese Municipalities were heard.
Under paragraph 1 a) of article 198 of the Constitution, the Government hereby decrees as follows:
This Decree-Law lays down an exceptional and temporary scheme to be applied to the retrofitting of buildings or of building units, the construction of which has been completed for at least 30 years or which are located in urban regeneration areas, where such buildings are used or intended to be used wholly or predominantly for residential purposes.
Scope of application
1 - This Decree-Law applies to the retrofitting of buildings or of building units, the construction of which has been completed for at least 30 years or which are located in urban regeneration areas, where such buildings are used or intended to be used wholly or predominantly for residential purposes, and insofar as urban operations do not lead to non-conformities, nor aggravate existing ones, or contribute to the improvement of safety and health conditions of the building or building unit.
2 - For the purpose of the preceding paragraph, retrofitting operations include the following urban operations:
a) Preservation works;
b) Alteration works;
c) Reconstruction works;
d) Construction or extension works, to the extent that they are constrained by pre-existing conditions that prevent compliance with applicable technical legislation, insofar as the alignment and height of the highest adjacent buildings are not exceeded, and safety and health conditions of other buildings are not aggravated;
e) Changes in the use.
3 - A building or building unit is deemed to be used predominantly for residential purposes where at least 50% of its area is intended for habitation and associated uses, such as parking space, store room or space for social use.
Exemption from the application of the General Urban Building Regulation
1 - Urban operations identified in the preceding article are exempted from provisions laid down in articles 45 to 52 and 59 to 70, from article 71, without prejudice to the existence of at least one aperture in each residential compartment, and from articles 72, 73, 75 to 80, 84 to 88 and 97 of the General Urban Building Regulation, approved by Decree-Law No. 38 382, of 7 August 1951.
2 - Without prejudice to the preceding paragraph, the alteration for non-residential purposes of part of the building or of an autonomous unit intended for residential use that does not entail a change in the predominantly residential use of the building, shall be allowed insofar as the pre-existing headroom is maintained.
Exemption from the application of the legal accessibility regime
Urban operations covered by this Decree-Law are exempted from technical accessibility standards provided for in the regime that defines accessibility requirements which the project and construction of public spaces, community facilities and public and residential buildings must fulfil, approved by Decree-Law No. 163/2006, of 8 August.
Exemption from the application of acoustic requirements
Urban operations identified in paragraph 2 of article 2 are exempted from acoustic requirements, provided for in the Regulation on Acoustic Requirements for Buildings, approved by Decree-Law No. 129/2002, of 11 May, as amended by Decree-Law No. 96/2008, of 9 June, except for those that concern parts of buildings or autonomous units intended for a non-residential use.
Requirements on energy efficiency and thermal quality
1 - Urban operations identified in paragraph 2 of article 2 are exempted from minimum requirements on energy efficiency and thermal quality, in situations where there are technical and functional incompatibilities, or incompatibilities at the level of architectural value, insofar as they are justified in a letter of guarantee signed by the technician responsible for the retrofitting project.
2 - Urban operations referred to in the preceding paragraph are exempted from minimum requirements on thermal quality where there are incompatibilities at the level of economic viability, insofar as they are justified in a letter of guarantee signed by the technician responsible for the retrofitting project.
3 - Legal requirements on the installation of thermal solar systems for home water heating, as well as the resource to alternative and renewable sources of energy, may be exempted where there are technical or functional incompatibilities, or incompatibilities at the level of economic viability or architectural value, insofar as they are justified in a letter of guarantee signed by the technician responsible for the retrofitting project.
4 - The letter of guarantee signed by the technician responsible for the retrofitting project, under the preceding paragraphs, shall:
a) Indicate which legal or regulatory provisions in force are not complied with by the project; and
b) Justify why such rules are not observed.
Gas installation in buildings
The installation of gas networks and the presentation of the respective project shall not be required for buildings covered by the scope of this Decree-Law, where its use is not foreseen and insofar as a different source of energy has been provided for.
Infrastructures for telecommunications in buildings
1 - In buildings covered by the scope of application of this Decree-Law, only the following telecommunication infrastructures shall be required:
a) Spaces for piping of the building’s rising main;
b) Piping networks required for the possible future installation of equipment, cables and other devices;
c) Top level aerial passage and underground cable entrance;
d) Cabling systems in copper pair, coaxial cable, for distribution of Type A and fibre optic sound and television signals.
2 - Piping referred to in the preceding paragraph must guarantee the connection of public communication networks and infrastructures from the exterior of the building to its interior and, in case of infrastructures provided for in points b) and d), to one of the larger dry compartments of each unit.
3 - Failure to comply with this article constitutes non-installation of required infrastructures, and is deemed to be a very serious breach, punishable under paragraph 3 a) and paragraphs 10 to 14 of article 89 of Decree-Law No. 123/2009, of 21 May, as amended by Decree-Law No. 258/2009, of 25 September and Law No. 47/2013, of 10 July.
Intervention on existing buildings shall not reduce safety and health conditions of buildings or the structural and seismic safety of the building.
Prevalence of the regime
Where this Decree-Law does not provide otherwise, legal regimes that focus on matters governed herein, as well as provisions of territorial management instruments that apply to urban operations which are the subject-matter hereof, shall remain applicable.
Period of validity
1 - The regime provided for herein shall be valid for a period of seven years from entry into force hereof, without prejudice to the following paragraphs.
2 - Provisions herein apply to prior control procedures of urban operations for the retrofitting of buildings or of building units pending on the date of entry into force hereof, as well as those pending of the date of expiry hereof.
3 - In case of retrofitting urban operations exempt from prior control, provisions herein apply also to works pending on the date of expiry hereof.
4 - Operations carried out under this regime shall not be affected by the expiry of this Decree-Law, insofar as buildings or building units maintain a predominantly residential use.
Entry into force
This Decree-Law enters into force on the day following that of its publication.
Checked and approved in the Council of Ministers of 20 February 2014. - Pedro Passos Coelho - António de Magalhães Pires de Lima - Jorge Manuel Lopes Moreira da Silva.
Promulgated on 2 April 2014.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 3 April 2014.
The Prime Minister, Pedro Passos Coelho.