The author previously served as chairman of the appeals committee in the central district
Uncertainty, instability, planning barriers and excess regulation are familiar concepts in the real estate world and anyone who deals in the field knows that these are not just slogans but a real reality.
Over the years, quite a few actions and legislative amendments have been made to streamline and simplify the planning and licensing procedures in order to increase certainty and remove planning and bureaucratic barriers.
One of the most recent amendments made within the Planning and Construction Law is the cancellation of the relief institution, which has become commonplace in recent years, especially in the context of requests under TAMA 38.
If at the beginning the reliefs were intended to allow planning flexibility or to bridge between outdated planning and the new planning reality, over the years they have become an inherent part of the planning situation and the basket of rights that the land owner saw before his eyes. Since the approval of the relief usually also entails the payment of the improvement levy, their approval was a breeding ground for many appraisal and legal disputes that created an additional burden on the system.
On January 1, 2023, the amendment to the law will enter into force and from that date it will no longer be possible to request concessions in new programs that will be approved from that date. In relation to old plans, it will be possible to continue to request concessions for a transition period of only two years.
The amendment to the law did leave in the hands of the Minister of the Interior the possibility to establish in deviation regulations that the Licensing Authority would be authorized to approve without the need for a relief procedure, but these are minor changes that have little and negligible impact on the building and the environment.
This means that the local and district committees will have a relatively narrow window of time to approve new and up-to-date plans that will also need to be carefully drafted in order to produce a clear and simple planning product for implementation that will also leave an intelligent flexibility space.
The success of this move may bring about a real change in the planning procedures in Israel and contribute in a real way to the desired certainty and stability.
However, it should be taken into account that the introduction of flexibility clauses in the regulations of the program itself, may continue to create disputes, including in aspects of the improvement levy.
For example, a provision in the plan that provides flexibility in the number of underground parking floors or the uses that will be allowed in them if there is a change in the parking standards required for the issuance of the building permit, will indeed avoid the need for renewed approval by the local committee or the use of an additional planning procedure, but will raise the question of whether this is a good provision or vice versa.
This, bearing in mind that normally, the improvement examination is done at the time of approval of the plan and not at the time of issuing the building permit.
A provision of this type can even raise the preliminary question of whether these are floating rights that are formed only in the construction permit phase, in such a way that the improvement examination phase is transferred to this date instead of the plan approval date.
A dispute of this type can in some cases have a decisive effect on the economics of a project and prevent its realization even if in terms of the licensing procedure it can be approved on the green track.
The challenge is therefore not only to formulate the plans from a concept of ‘planning that considers licensing’, but also from a deep understanding of the existing interface between the worlds of planning and licensing and the world of improvement.
And perhaps, the solution is to conduct a revision in the mechanism according to which the improvement levy is collected today.
time will tell.