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Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
The main government authorities that regulate planning and zoning for real estate development are:
- regional governments, which establish the regional development strategy and participate in the approval of communal and intercommunal territorial planning instruments;
- the Ministry of Housing and Urban Planning, which establishes the national urban development policy and participates in regional and intercommunal urban development plans, the national policy for the use of the coastal border and the division of rural land; and
- municipalities, which establish the urban limit, sectional plans, communal and intercommunal regulatory plans, division of rural land and communal tourist planning.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
Planning permission (ie, a building permit) is required for any new construction, or any alteration, repair or reconstruction greater than 100 square metres. Such a permit is granted by the director of municipal works of the corresponding municipality and authorises the petitioner to build in a specific area of the commune, without which no works can be executed.
The following documentation must be filed to obtain the permit:
- an application form;
- title deeds;
- a certificate of previous information;
- a single form of building statistics;
- a certificate of drinking water and sewerage feasibility;
- a favourable report of an independent reviewer (where applicable) or an architect under sworn statement;
- a professional patent of the sponsoring architect and each competent professional involved in the project;
- architectural drawings;
- technical specifications; and
- a structural calculation project.
The Directorate of Municipal Works has a 30-day term, from the date of admission of the application, in which to decide on the requested permit. The directorate may approve the building permit or make observations to be rectified by the petitioner. The petitioner has 60 days to rectify the observations, after which the directorate has another 30 days to approve the building permit. Once the permit is approved, the petitioner must pay the corresponding rights, after which the building permit is granted within three to four days.
Once the construction of the works has been completed, it is necessary to obtain a final reception certificate which declares that the construction is suitable to be inhabited and allows its occupation.
Can planning decisions be appealed? If so, what is the appeal procedure?
Building permits will be approved or rejected depending on whether a specific project complies with legal requirements. If a building permit is rejected, it should be modified in order to comply with the legal requirements established for that specific area. However, if the petitioner disagrees with the decision of the Directorate of Municipal Works, he or she has three main actions to appeal that decision:
- file a claim before the general comptroller of Chile;
- file a claim before the regional secretariat of the Ministry of Housing and Urban Development; or
- file an illegality action before the mayor of the municipality.
What are the consequences of failure to comply with planning decisions or regulations?
No works may be carried out without a building permit. Failure to comply with a building permit may lead to a work stoppage, on the other hand, not having the corresponding final reception certificate may lead to the municipality declaring the inability of the building until it receives its final reception and the eviction of the occupants, with the help of the public force. In addition, in case of any of these faults, the authority may declare the demolition of the constructions, and the local police judge of the respective commune can charge between 0.5% and 20% of the official value of what the works would cost, based on a table issued by the Ministry of Housing.
What regime governs the protection and development of historic and cultural buildings?
There is a specific law which regulates national monuments. The National Monuments Council regulates and governs historic and cultural buildings.
What regime applies to government expropriation of real estate?
Private property is considered a fundamental right and is protected by the Constitution. However, it is possible for certain public authorities to expropriate for reasons of public utility and necessity, in which case the person who had property expropriated is entitled to compensation.
What is the required notice period for expropriation and how is compensation calculated?
Once the resolution that orders the expropriation is published in Diario Oficial (the official bulletin), the property owners affected have 30 business days to file a claim before the civil judge opposing to the expropriation or provisional amount of compensation.
The final expropriation amount may be established by common agreement between the authority and the expropriated party. In this case, they will be able to determine jointly the form and term for payment. The agreement must be made by public deed before a notary, from the notification of the resolution ordering the expropriation until 30 days after the authority took possession of the land that was expropriated.
If the authority or expropriated party disagrees with the amount of compensation provisionally fixed by the expert commission, it may file a claim before the civil judge. The period for claiming starts from notification of the resolution ordering the expropriation, and runs up to 30 days after the authority takes possession of the expropriated land. A complaint to the judge involves a trial and the parties must be represented by a lawyer.
What environmental certifications are required for the development of real estate and how are they obtained?
In certain cases, real estate development requires an environmental qualification resolution.
Regarding the environmental evaluation of a project, the General Environmental law sets out that real estate projects or activities are subject to the Environmental Impact Evaluation System (SEIA) if:
- the real estate projects are located in saturated or latent areas;
- the real estate projects are built in rural areas or extensions of urban areas which require private systems for potable water and wastewater disposal;
- the real estate projects lead to the incorporation of new public roads;
- the real estate projects comprise more than seven hectares; and
- the real estate projects have a capacity to house 5,000 or more people or contain 1,000 or more car parks.
There are two ways in which projects enter into the SEIA:
- through an environmental impact study; or
- through an environmental impact declaration.
This process evaluates all the environmental impacts of the project, as well as asking all bodies of state with environmental jurisdiction to have a say in the process.
The impacts that require an environmental impact study are classified in the General Environmental Law, which establishes that a project will need to submit a study if it:
- risks human health, due to the quantity and quality of effluents, emissions or waste;
- presents significant adverse effects on the quantity and quality of renewable natural resources, including land, water and air;
- presents the resettlement of human communities or significantly changes the life and customs of human groups;
- is located in or near protected areas;
- significantly changes valuable scenic tourist areas; or
- significantly affects national monuments or sites belonging to cultural heritage.
According to time limits established by law, environmental impact studies should take 180 days to obtain approval, while environmental impact declarations take only 90 days. However, in practice the average processing period of an environmental impact study takes around 18 months, and an environmental impact declaration takes around nine months.
Regarding the penalties for failing to register under the SEIA when required to do so, the environmental superintendence can require the developer to register the project under the SEIA, as well as stop all construction or operations. It can also apply a significant fine of up to approximately US$8 million, if the project should have been evaluated through an environmental impact study or a fine of up to US$4 million if the project should have been evaluated through an environmental impact declaration.
What environmental disclosure obligations apply to real estate sales?
Chilean legislation considers no obligations regarding the disclosure of environmental obligations. It is the parties’ responsibility to regulate this issue.
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
The titleholder of an environmental permit is the one responsible for fulfilling its obligations. Therefore, if any environmental damage is detected the titleholder of the permit will be investigated by the Environmental Commission, a public body in charge of applying fines and penalties as a consequence of non-compliance to applicable laws and regulations. Penalties are applied once an investigation is complete. The main penalties are:
- written admonition;
- a fine ranging from approximately US$800,000 to US$8 million;
- temporary or permanent closure; and
- revocation of the environmental qualification resolution.
Regarding environmental liability, the Environmental Act states that "any person that wilfully or negligently causes an environmental damage shall be liable therefore in accordance with this law”.
Environmental damage is deemed to occur if there is any “loss, reduction, detriment or significant impairment inflicted upon the environment as a whole or upon one or more of its components”.
In connection with the environmental actions, the Environmental Law grants the right to file an environmental claim before the competent court to:
- individuals or legal entities, both private and public, that have been affected by the damage or loss;
- municipalities, regarding events that occurred within their respective jurisdictions; and
- the State through the State Defence Council.
Environmental damage occurs through two types of action:
- an environmental action for damages, concerning compensation for the damages caused to the environment; and
- a civil action for damages, concerning compensation of those individuals that have been directly harmed by the action.
The term to claim environmental damages expires within five years from the date on which the damage becomes evident.
With respect to the civil action that arises to compensate or repair the damage caused to any person due to breach of environmental regulations, it is subject to the ordinary tort regimen set out in the Chilean Civil Code, which imposes liability on any person that causes damage to a person or his or her property if the action causing such damage is undertaken with negligence or wilful misconduct. The term to claim civil damages expires within five years from the date on which the damage was inflicted on the person claiming repair or compensation.
In both cases, the person claiming repair or compensation of the environmental or civil damages must prove:
- that the actions undertaken by a third party have caused the damage;
- the existence of negligence or wilful misconduct from the person causing the damage; and
- the existence and amount of damages caused.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
No legislation incentives are in place at this time.
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