Construction of Small Hydroelectric Power Plants and Electricity Generation in Serbia - Procedure for Issuing the Location Permit

The Law on Planning and Construction prescribes that the Location Permit (*65) is the document containing all the requirements and data needed for preparation of the technical documentation (the Preliminary and the Main Design), in line with the valid planning document. The Location Permit is also a prerequisite for issuing the Construction Permit. The Location Permit for small hydropower plant facilities shall be issued by the competent authority of the unit of local self-government (city/town, municipality) in the territory of which the facility is going to be constructed (*66). For small hydropower plants to be constructed in the protected environs of outstanding cultural assets, and of cultural assets registered in the Lists of the World Cultural and Natural Heritage and of structures in protected areas in compliance with the decision on protection of cultural assets, as well as of structures within the boundaries of a national park and of structures within the boundaries of protection of a protected outstanding natural asset, the Location Permit shall be issued by the ministry in charge of civil engineering affairs, or by the Autonomous Province, if the facility is located in the territory of the Autonomous Province.

Procedure for Issuing the Location Permit

The documentation necessary to obtain the Location Permit for construction of a small hydropower plant is specified in the Law on Planning and Construction. The following shall be submitted as obligatory exhibits to the Application for the location permit: 1) A copy of the lot plan (issued within a period of maximum of six months); 2) The certificate of the cadastre of underground installations; 3) Evidence of the ownership right, or of lease of the construction land (*67) (*68).

The application for the Location Permit, apart from the above, must also contain the data on the structure to be constructed, particularly on the planned layout, type, and use of the structure, technical characteristics and the like. (*69) The Law on Planning and Construction stipulates that the building plot must be formed prior to submitting the application for the Location Permit. If the authority in charge of issuing of the location permit establishes that adequate documentation has not been submitted with the application for the location permit, it shall notify the applicant thereof within eight days. In case the planning document does not contain all the requirements and data for preparation of the technical documentation, the competent authority shall obtain them ex officio, at the expense of the investor. The authorities or organizations authorized to issue such requirements and data shall act further to the request of the competent authority within 30 days. The competent authority shall issue the Location Permit within 15 days as of the date of a duly submitted application or of obtaining of the requirements
and data, which it shall procure, ex officio.

The location permit shall particularly contain (*70): 1) The name and family name of the investor including his/her personal identification number, or business name or name of the investor including the seat and tax identification number -PIB; 2) The number and the surface area of the cadastral lot; 3) The data on the existing structures on the lot that need to be removed; 4) The defined access to a public traffic area; 5) The use of the structure; 6) Building lines; 7) Codes of construction; 8) Requirements for connection to roads, public utilities, and other infrastructure facilities; 9) Possible and mandatory stages in the project implementation; 10) A List of mandatory parts of the Main Design; 11) The name of the planning document based on which it is issued; 12) The statement that the legally valid Location Permit shall serve as the basis for preparation of the Preliminary and of the Main Design in case of the facility referred to in Article 133 of the Law on Planning and Construction, or for preparation of the Main Design; 13) The obligation of the designer-in-charge to prepare the design in compliance with the Codes of Construction and requirements from the Location Permit; 14) The statement that the issued Location Permit shall cease to be valid if the investor, within two years as of the date of legal validity of the decision on the location permit, fails to submit the application for issuance of the Construction Permit. A statement of reasons supporting the Location Permit shall include, among other things, the statement that the cadastral lot meets the requirements specified for the building plot. An appeal may be lodged against the decision on the Location Permit, issued by a unit of local self-government, within eight days. An appeal against the decision on the Location Permit of a unit of local self-government shall be decided on by the ministry in charge of town planning affairs, or by the competent authority of the Autonomous Province, if the facility is to be located in the territory of the Autonomous Province. An administrative suit can be instituted by action against the decision on the application for the Location Permit, which is issued by the Ministry of Environment and Spatial Planning, or by the competent authority of the Autonomous Province.

Forming the Building Plot (*71)

A building plot is a part of the construction land, with an access to a public traffic area, which has been constructed or is envisaged for construction by a plan. For construction of small hydropower plants, a building plot represents a belt of land of incomplete expropriation (*72) of a part of the cadastral lots through which the facility will stretch, and of individual lots to accommodate the appurtenant above-ground facilities. In addition to an incomplete or complete expropriation, access easement agreements concluded with the owners of the cadastral lots shall also be recognized as evidence of resolved property-rights relations for construction of line infrastructure facilities. For construction of small hydropower plants, which are to be constructed on cadastral lots bordered by lots within water land or forest land, the building plot is to be formed within the cadastral lot on which the main facility is going to be built while, for laying installations over the water land or forest land, an access easement agreement concluded with a public company or any other organization managing the water land or forest land shall be recognized as evidence of resolved property-rights relations, in accordance with a separate law. Small hydropower plants may also be constructed on agricultural land, subject to a prior approval obtained from the ministry in charge of agricultural affairs. For construction and/or mounting of electric power facilities or equipment, a building plot may be formed of a smaller size than the area envisaged in the planning document for the particular zone, provided there is an access to the facility and/or to the equipment, for the purpose of maintenance and elimination of defects or accidents. An access easement agreement with the owner of the servient estate shall be recognized as the resolved access to a public traffic area. A lease agreement on the land which is private property, signed with its owner in compliance with separate regulations, may be recognized as a piece of evidence on resolved property-rights relations for the land designated for power plants. The Allotment/Reallotment Plan, i.e. the plan forming the building plot shall be prepared prior to submitting the application for the Location Permit. The reallotment plan implies the plan forming one or more building plots on a number of cadastral lots, while the allotment plan implies the plan forming a number of building plots on a single cadastral lot. The allotment or reallotment plan shall be prepared by a company or by another legal entity or an entrepreneur, registered in the relevant registry of designers. Drawing up of the allotment plan shall be managed by a town planner-in-charge, an architect. The specified plan must also contain the Design of Geodetic Survey Benchmarking. The allotment or reallotment plan shall be submitted for verification to the authority in charge of town planning affairs of the unit of local self-government. If the plan is in compliance with the valid planning document, the competent authority shall verify the plan within 10 days and, if not, it shall notify the party that has submitted the plan thereof. A complaint against the above notification may be lodged to the municipal or to the city/town council within 3 days as of the date of its submittal. Thereafter, the Application for undertaking allotment, or reallotment, shall be submitted to the Authority in charge of the affairs of state survey and cadastre (RGA – the Republic Geodetic Authority). The following shall be submitted with the application for undertaking the reallotment/allotment: 1) The evidence of resolved property-rights relations for all the cadastral lots, and 2) The reallotment, or allotment plan verified by the authority in charge of town planning affairs of the unit of local self-government, an integral part of which shall also be the Design of Geodetic Survey Benchmarking. Further to the above application, the authority in charge of the affairs of state survey and cadastre shall hand down the Decision on forming of the cadastral lot(s). An appeal may be lodged against this decision within 15 days as of the date of submitting the decision. For obtaining the Location Permit for the structures of small hydropower plants, the Article of the Law on Planning and Construction, which regulates special cases of forming of a building plot, may be applied.

Water Requirements, Water Approval, and Water Permit (*73)

The Law on Waters differentiates between the general and special use of waters. Use of water for energy generation, i.e. in small hydropower plants, falls under the special use of waters. The right to the special use of water shall be acquired by the Water Permit and, if special use of waters is based on a concession deed, then the right to use the water shall be acquired in compliance with the Concession Agreement. The Law on Waters has also introduced special rules regarding the design and carrying out of the construction works on structures. Designing and construction of structures shall be carried out in such a manner as to: 1) Enable discharge of waters back into the watercourse after exploitation of the energy; 2) Not to reduce the current volume or to preclude the use of water for supply to the citizens and other users; 3) Not to degrade the level of protection from detrimental impact of waters; 4) Not to deteriorate the conditions of sanitary protection; 5) To ensure their multipurpose use. This Law defines the following documents related to water management: 1) Water Requirements, 2) Water Approval, 3) Water Permit, and 4) Water Order. The water documents are issued by the Ministry of Agriculture, Forestry and Water Management when a hydropower plant is constructed in Serbia proper. However, if the power plant is to be constructed in the territory of the Autonomous Province, then such documents are issued by the competent authority in charge of agriculture, forestry and water management in the Autonomous Province and, if the structure is located in the territory of the City of Belgrade, the water documents are issued by the Water Administration. Water documents shall be issued within two months from the date of the application. An appeal against a water document issued by the competent authority of the Autonomous Province of Vojvodina, or by the Water Administration may be submitted to the minister within 15 days. The discontented party may initiate an administrative suit against the decision issued by the Ministry. The Law prescribes that, in the procedure for preparation of the technical documentation for construction of new and reconstruction of the existing structures and for carrying out of other works, which may have impact on the changes in the water regime, the investor shall have to obtain Water Requirements (specifying technical and other criteria that must be met). It also prescribes that, for the requirements of preparation of the technical documentation, it is necessary to obtain the Water Approval, which specifies that the technical documentation for the structures and works has been prepared in compliance with the Water Requirements. The Water Permit, which shall be obtained once the structure is constructed (an Operating Permit cannot be issued without having obtained the Water Permit), specifies the manner and conditions for the exploitation and use of waters and discharge of waters. The procedures for issuing the above documents will be explained in more detail herein below. Prior to the issuing of the Water Requirements (which are an element of the Location Permit, and are necessary for preparation of the design documentation – the Main Design), it is necessary to obtain the Opinion of the Republic organization in charge of hydro meteorological affairs (the Republic Hydro-Meteorological Service - RHMS) and the Opinion of the public water-management enterprise (Public Water-Management Enterprise Srbijavode – for the territory of the Republic of Serbia except for the Autonomous Province of Vojvodina, i.e. of the Public Water-Management Enterprise Vode Vojvodine – for the territory of the Autonomous Province of Vojvodina).

The Opinion of the Republic Hydro-meteorological Service shall be obtained on the basis of the submitted Application. The following shall be submitted with the application (*74): 1) a topographic map of the area (1:25000) with indicated layouts of the structures; 2) Technical Description, and 3) In case of unexplored catchment areas (which are most often the catchment areas of small hydropower plants), a hydrological study (usually based on meteorological data, as well as on the hydrological data from the adjacent catchment areas). It is recommended to start measuring the water flows from the very first visit to the prospective location of the water intake. The opinion of the public water-management enterprise is obtained upon submitting the Application for the opinion. The following shall be submitted with the application (*75): 1) A copy of the plan with the plotted structures, 2) An excerpt from the planning document – the information on the location, 3) The technical description of the design (if available, the General Design may be
submitted). The Application for the Water Requirements shall be submitted after obtaining the Opinion of RHMS and the Opinion of the public water-management enterprise. The following shall be submitted with the Application for the Water Requirements: the basic data on the location, use, and size of the structure and, if required, preliminary studies, and the General Design (Conceptual Design), which provide a more detailed insight in the impact of the structure on the water regime. The opinion of the public water-management enterprise is mandatory for issuing the Water Requirements. In addition to the above, the following shall also be submitted with the Application for the Water Requirements: 1) A copy of the plan (including the plotted position of the structure), issued by the competent Real Estate Cadastre; 2) The registered land certificate (for the cadastral lot on which the structure is to be constructed), issued by the competent Municipal Court, or by another competent authority; 3) The certificate of resolved property-rights relations: evidence of ownership – use of the land by the investor, approval of the public water-management enterprise if the construction of a structure of public interest on the water land is in question; 4) The plan of use of the areas, issued by the competent town planning body of the local self-government unit. (*76)

The competent ministry (the Ministry of Agriculture, Forestry and Water Management) is in charge of issuing the Decision on Water Requirements. The main design shall be prepared based on this Decision. The obtained Decision on Issuing the Water Requirements is one of the elements of the location permit. (*77) Once the location permit has been obtained, one should proceed to preparation of the design documentation – (the Preliminary and) the Main Design of a small hydropower plant. In order to proceed to the following stage – obtaining of the Construction Permit, it is necessary, inter alia, to obtain the Water Approval for the specified design documentation. Before that, an approval from the Ministry of Health and the Ministry of Environment and Spatial Planning (*78) should also be obtained. The Water Approval establishes that the technical documentation – the Main Design, has been prepared in compliance with the Water Requirements. The documentation for issuing of the Water Approval is specifically the technical documentation – the Main Design, which shall include: 1) The technical report; 2) Computations: hydrological, hydraulic, of stability, level of pollution, etc.; 3) Graphical exhibits: layout plans, plans, and cross-sections with the necessary elements for establishing the impact of the water regime on the structure and vice versa; 4) Presentation of the natural water regime; 5) Presentation of the projected water regime; impact of the structure on the natural and the projected water regimes; 6) The impact of the natural and projected water regime on the structure. The approvals of the Ministry of Health and of the Ministry of Environment and Spatial Planning shall also be submitted along with the above application. The following shall be submitted with the application for the Water Approval on the Main Design: 1) The Decision on Issuing the Water Requirements; 2) The Main Design; 3) The report on the review of the design; 4) Other documents, which are required in the Decision on Issuing the Water Requirements. (*79) In case the construction of the hydropower plant does not commence within two years from the date of issuance of the Water Approval, the water approval shall cease to be valid. As required, prior to the issuing of the Water Requirements and the Water Approval, for the use of water land, water facilities, and providing other services (in accordance with the Decision for the current year), the Investor shall conclude the relevant Agreement with the public water management enterprise or with the Ministry of Agriculture, Forestry and Water Management – the Republic Water Directorate.

Once the facility has been constructed, and prior to obtaining the Operating Permit, it is necessary to submit the application for the Water Permit to the Ministry of Agriculture, Forestry and Water Management, or to the authority which has issued the Water Approval. The Water Permit is required for the exploitation and use of waters and natural and artificial watercourses, lakes, and ground waters, for discharge of waters and other substances into natural and artificial watercourses, lakes, ground waters, and public sewers, as well as in case of increase of the capacity of the already existing structure – for the increase of the quantity of intaken and discharged waters, changed nature and quality of discharged waters. This Permit shall be issued for a period of maximum 15 years so that, maximum two months prior to its expiry, its validity should be extended. The right acquired based on the Water Permit may not be transferred to a third party without the consent of the issuing party, and this right shall expire: upon expiry of the validity thereof, by waiver of the right, and by failure to exercise the right without justified reasons for over 2 years. The following shall be submitted together the application for the Water Permit: 1) The Water Approval; 2) Evidence of fulfillment of the requirements from the Water Approval; 3) The technical documentation based on which the structure has been constructed, including all the modifications and additions made in the course of construction; 4) The report of the commission on the completed technical inspection of the constructed structure or plant; 5) The opinion of the public water-management enterprise concerning the fulfillment of the requirements from the Water Approval, the impact of the structures on the water regime, the impact of the water regime on the structure, and the requirements for issuing the Water Permit. (*80)

Details of Relevant Legislation

(*65) Related to the obtaining of the documentation necessary for issuing the Location Permit for small hydropower plants (up to 10 MW), there are cases of overlapping of the required documentation (on the right to use the land, technical documentation,...) for issuing of certain documents.

(*66) A small hydropower plant within the boundaries of a national park or within the boundaries of protection of a protected outstanding natural asset is within the competence of the Ministry of Environment and Spatial Planning.

(*67) This evidence for issuing of the location permit is exactly the same as for issuing of the Construction Permit. As evidence of the ownership right, or of lease of the construction land for construction or for carrying out of the work on the construction land or on the facility, which is owned by a number of persons – a certified consent of such persons shall also be submitted.

(*68) When construction of line infrastructure facilities is in question, the decision of the competent authority establishing the public interest for expropriation, in compliance with a special law, or the access easement agreement with the owner of the servient estate, shall serve as the evidence of the ownership right for issuing of the location permit.

(*69) In practice, for obtaining of the Location Permit, the General Design (conceptual design), which contains all requested data, is prepared and submitted.

(*70) The Rulebook on Contents of the Information on Location and on Contents of the Location Permit.

(*71) Provisions of the Law on Planning and Construction, in this case, are not quite clear with respect to the formation of the building plot for construction of a small hydropower plant, since at first glance, they indicate that formation of the building plot is not necessary Still, Article 69, paragraph 1, prescribes that, for construction of electric power facilities, a building plot may be formed of a smaller size than the area envisaged in the planning document for the particular zone, provided there is an access to the facility and/or to the equipment, for the purpose of maintenance and elimination of defects or accidents. Also, paragraph 5 of the same Article stipulates that, for construction of small hydropower plants, the building plot represents a belt of land of incomplete expropriation of a part of the cadastral lots on which the facility is to be located, or the lot formed in accordance with the access easement agreements concluded with the owners of the cadastral lots. The Law on Expropriation prescribes that public interest can also be established, inter alia, on the basis of an application filed by a public company. However, although the Energy Law stipulates that a small hydropower plant pursues activities of public interest, it may happen that the facility is a private property, which is not connected to the grid. In this case, a question can be raised on the existence of public interest and expropriation of private property due to construction of a small hydropower plant – by a self-sufficient producer. If one accepts that a small hydropower plant – a self-sufficient producer - is not a facility of public interest, in this case there is no need for the land expropriation, and it should be possible to issue the Location Permit based on the land ownership (title deed) and the agreements concluded with the owners of the cadastral lots. A question could be raised here regarding justification of defining the activity of electricity generation as an activity of public interest, and consequently, of each individual case of construction of a small hydropower plant (that will be able to obtain the status of a privileged power producer and to sell the electricity under the feed-in tariff scheme), as a facility of public interest and the possibility of land expropriation for such facilities. The Law on Expropriation prescribes that public interest can also be established, inter alia, on the basis of an application filed by a public company. A public company may construct facilities, which are completely export-oriented and, as such, are not engaged in an activity of public interest within the meaning of the general public interest of the Republic of Serbia. Also, a public company may launch a project and carry out the land expropriation and, at a later stage, incorporate it into a joint-venture project with a private entity, thus the electricity produced in such a facility may not be used to serve the public interest of the Republic of Serbia, but may be exported in a commercial transaction provided for under the said project.

(*72) Article 5 of the Law on Expropriation stipulates that expropriation may also include the instigation of an easement over the immovable property or lease of land for a specific period of time (incomplete expropriation). The lease may be imposed only when the land, in view of the use for which the lease is proposed, will be occupied temporarily and not for a period exceeding three years (for exploration of mineral and other resources, use of a quarry, excavation of clay, sand and gravel, lease of natural resources for the purpose of their protection, etc.). Upon expiry of the period of incomplete expropriation, the beneficiary of the expropriation shall be obliged to restore the land to original conditions.

(*73) Issuing of the Water Requirements, Water Approval, and Water Permit is regulated by the Law on Waters. This Law does not make a distinction between a small hydropower plant and a hydropower plant exceeding 10 MW.

(*74) There is nothing prescribed as to what should be submitted with the application for the Opinion from RHMS – what has been specified in the text is a general assessment of the author in line with the discussions in the specified organization.

(*75) There is nothing prescribed as to what is to be submitted with the application for the Opinion from the public water-management enterprises – what has been specified in the text is a general assessment of the author in line with the discussions in the specified organizations.

(*76) To assist an applicant, the list of all the required documentation for obtaining the water documents can be found on the Web site of the Ministry of Agriculture, Forestry and Water Management: www.minpolj.gov.rs Link: Arhiva – Vodoprivreda - Vodna akta - Obrazac zahteva VU (Archive - Water Management – Water Documents - Application Form VU). In compliance with the Law on General Administrative Procedure, the authority may request from the Investor to complete the documentation.

(*77) Exceptionally, subject to Article 118 of the Law on Waters, the authority in charge of issuing of the Water Requirements may request from the applicant to obtain the opinion of the Ministry of Environment and Spatial Planning and/or of a specialized scientific institution (establishments, institutes, etc.). For the structures and works in a territory of a spa resort, the applicant shall obtain the opinion of the ministry in charge of the affairs of tourism. There is no specifically prescribed procedure for obtaining the above opinions.

(*78) There is no specifically prescribed procedure for obtaining of such an approval.

(*79) To assist an applicant, the list of all the required documentation for obtaining the water documents can be found on the Web site of the Ministry of Agriculture, Forestry and Water Management: www.minpolj.gov.rs Link: Arhiva – Vodoprivreda - Vodna akta - Obrazac zahteva VS (Archive - Water Management – Water Documents - Application Form VS). In compliance with the Law on General Administrative Procedure, the authority may request from the Investor to complete the documentation.

(*80) To assist an applicant, the list of all the required documentation for obtaining the water documents can be found on the Web site of the Ministry of Agriculture, Forestry and Water Management: www.minpolj.gov.rs Link: Arhiva – Vodoprivreda - Vodna akta - Obrazac zahteva VD (Archive - Water Management – Water Documents - Application Form VD). In compliance with the Law on General Administrative Procedure, the authority may request from the Investor to complete the documentation.

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