Architectural principles of construction law and what they mean:
limitations on zoning for construction, green belts, green area certificates and green trademarks
The majority of the rules in Act C of 2023 on Hungarian Architecture (“HAA”) took effect on 1 October, and therefore in the coming weeks we will publish a series of articles to shed light on the key provisions of the HAA and various elements introduced by it that are new and not included in Act LXXVIII of 1997 on the Development and Protection of the Built Environment.
One of the most important new developments is that the HAA states certain principles of architecture, such as the principles of:
(1) good taste and architectural quality;
(2) required minimum;
(3) alignment with local traditions and state-of-the-art knowledge;
(4) the conservation of natural systems;
(5) prioritising brownfield areas;
(6) the conservation and tasteful use of architectural heritage;
(7) the quality of human life and universal planning;
(8) security of supply in Hungary;
(9) digitalisation; and
(10) regulators’ mandatory duty of care
[HAA, Section 3(1)].
Getting to know the principles of architecture is a worthwhile endeavour, because these will not be merely abstract requirements but will also play a major role in practice: in the absence of express regulations pertaining to any particular matter, the decisions of architectural planning boards will have to be based on these principles. [HAA, Section 3(2)]
This article discusses the principle of the conservation of natural systems and the related newly introduced documents, with special emphasis on Government Decree No. 282/2024. (IX. 30.) on green infrastructure, green area certificates and the green trademark (“Decree”).
The principle of the conservation of natural systems must be asserted in city planning, in the use of existing architectural heritage and in the construction of new buildings alike. What does all this mean in practice?
The regulations aim to ensure that the principle prevails via the following tools and solutions:
(1) prohibiting the zoning of new construction areas;
(2) introducing strict rules on the zoning of new construction areas;
(3) introducing “green area” certification; and
(4) introducing a “green trademark”.
1. Prohibition of zoning new construction areas
The HAA states that the total size of green areas within the administrative boundaries of a settlement may not be reduced, and the green areas of the settlement may not represent less than 3% of the area zoned for construction. [HAA, Section 8(1)]
This means that no new area may be zoned for construction in a green area or on agricultural or forestry land, except if a green area or agricultural or forestry land of the same size and with the same biological activity value is created as a replacement area within the administrative boundaries of the same settlement. If the replacement area is a green area, it must be suitable for functioning as a public garden or as a public park. [HAA, Section 7(2)]
2. Strict rules on the zoning of new construction areas
The HAA imposes strong restrictions on building coverage ratios, because an area may only be zoned for construction in a zoning plan if:
(1) a suitable replacement area is available, if the area zoned for construction is a green area or agricultural or forestry land;
(2) the requirements concerning the size of green areas are satisfied;
(3) a “green belt” with a width of at least 500 metres can be retained between areas zoned for construction in neighbouring settlements in order to avoid merging, as long as this is physically possible;
(4) no brownfield area suitable for the proposed project is available within a radius of 5 km and within the administrative boundaries of the relevant settlement;
(5) the biological activity value can be maintained at the same level;
(6) the infrastructure necessary to guarantee the liveability of a residential area (paved roads and public utilities with adequate capacity) is in place or can be built, and the necessary schools and hospitals will be in place in the settlement or within a radius of 5 km of the planned residential area within 3 years after the area is zoned for construction;
(7) within areas zoned for construction in the relevant settlement, there is no unbuilt or brownfield area that is fit for the purpose of the proposed project; and
(8) the requirements specified in Act CXXXIX of 2018 on the Zoning Plan of Hungary and Certain High-Priority Regions with regard to the zoning of construction areas are met.
[HAA, Section 7(2) and Sections 8/E (1) through (3)]
It is important to note that in line with the principle of prioritising brownfield areas, if a brownfield area suitable for the relevant project is available within a radius of 5 km of an area that would otherwise be proposed to be zoned for construction, such a new area may only be zoned if there is a valid public interest that justifies such a zoning decision. [HAA, Section 8(2) c]
It is also important to point out that if such a valid public interest exists, the National Chief Architect may also grant a reasoned exemption from the requirements described in points (2), (3), (6) and (8) above. [HAA, Section 8(4)]
3. Green area certificate
The HAA introduces a system of green area certificates, in the mould of energy performance certification, which will include precise information about the condition, quality and maintenance requirements of green areas located next to specific buildings and properties and of other public green areas, allowing for more informed planning decisions and more efficient management of such green areas. A green area certificate is a document that describes the ecological capacity and green infrastructure coverage of a piece of land or a property on the basis of an ecological analysis. [HAA, Section 16.135]
When will a green area certificate be necessary?
Under the Decree, a green area certificate will have to be obtained with regard to the green areas of construction plots that have a total useful area of more than 5,000 sqm and on which:
(1) a high-priority project,
(2) a project in a “rust belt action area”,
(3) a government building construction project,
(4) a project involving the construction of a building with a mean roof height of 65 metres, or
(5) a construction project
is carried out.
Under the Decree, a green area certificate will also have to be prepared for any landscape architecture project that has an area of more than 5,000 sqm. Otherwise, developers will be free to decide whether they want to obtain a green area certificate. [Decree, Sections 27(1), (2) and (6)]
Developers will also be free to decide whether they want to obtain a preliminary green area certification declaration in the design phase of a new building project. It is important to note that the existence of such a declaration will not create an exemption from the obligation to obtain a green area certificate. [Decree, Sections 34(1) and (3)]
Under the Decree, a green area certificate is not necessary in certain specific cases, such as where
(1) the project involves the construction or development of traffic or public utility infrastructure, or
(2) this is expressly stated in a government decree that designates an area as a rust-belt action area or a project as a high-priority project. [Decree, Sections 27(3) and (6)]
From when and at which point of a construction project will a green area certificate have to obtained?
Green area certificates will have to be obtained in the case of construction projects that are subject to the Decree if the application for the building permit is submitted on or after 1 April 2025. No green area certificate will have to be obtained for projects that were designated as high-priority projects, and projects that are carried out on areas that were designated as rust-belt action areas, before the Decree took effect on 1 October 2024. [Decree, Sections 49(1) and (2)]
The developer will have to obtain the green area certificate before the application for a certificate of occupancy is submitted in the case of a building, and before the technical handover is completed in the case of a landscape architecture project. [Decree, Section 27(4)]
Under the Decree, a certificate of performance may only be issued at the end of the occupancy certification procedure or the technical handover if the plot appurtenant to the new building or landscape architecture project has at least a class “C” green area certification. [Decree, Section 27(5)]
For how long will a green area certificate be valid?
Under the Decree, a green area certificate will be valid for five years. The owner will have to retain the certificate during this period and deliver it to the new owner if the building is sold. [Decree, Sections 35(1) and (2)]
What information will be stated in a green area certificate?
According to the Decree, a green area certificate will include (1) a summary sheet, (2) the relevant green area parameters, (3) ecological cubic capacity and ecological wealth calculations, (4) green area development and maintenance recommendations, and (5) photographic evidence of the on-site inspection.
The summary sheet will state (1) the green area classification and CO2 absorption capacity, (2) the ratio of biologically active and inactive areas, and (3) the green cubic capacity of the plot. The green area development and maintenance recommendations will include recommendations concerning the highest potential class that the plot can achieve with additional green infrastructure development and improvement, development and management suggestions, and various ecologically, technically and aesthetically feasible proposals for the spatial placement, quality and management of green areas and buildings. [Decree, Section 29(1) and Section 30(1)]
4. Green trademarks
Pursuant to the new regulations, efforts must be made during the architectural and engineering design process to preserve existing plants and to use products with green trademarks. The system of green trademarks is designed to attest the endemicity and ecological footprint of plant-based raw materials. The detailed rules of this system are stated in the Decree. [HAA, Section 7(3) and Section 16.138]
Tasks associated with the keeping of a list of tree nurseries that sell products with green trademarks and a website that displays such list are performed by the Hungarian Ornamental Horticulturist Association. [Decree, Section 39(1)]
What products can be green trademarked?
Plants used as raw materials can get a green trademark if they are successfully adapted to the local environment, their production method is certified, they are viable and non-invasive, and serve the purpose of the creation of a sustainable green infrastructure. A green trademark will be awarded on the basis of an analysis of the endemicity of the plants and whether the ecological footprint of their production and sale meets the applicable requirements, i.e. whether the distance between the place where the plant-based material is produced and where it is used is less than 200 km. The registration of a green trademark is voluntary. [Decree, Sections 38(1) and (2), Section 39(3)]
The registration of a green trademark may be requested for a plant that has been in vegetation in a reference location with a continental climate for at least six years. Qualifying reference locations include plant breeders’ establishments, parks, arboretums or private gardens in an area with a continental climate. The reference location must have at least three specimens of the plant. [Decree, Section 42(1)]
The process of qualifying a new plant-based material takes four years. During this time, the application for the registration of a green trademark must be submitted to the Hungarian Ornamental Horticulturist Association, and three specimens of the relevant plant must be planted and then observed until the plants survive at least two continental summers and winters without being covered up. [Decree, Section 42(2)]
A certificate regarding the green trademark of a plant may be requested by the operator of a tree nursery. [Decree, Section 43(1)]
For how long will a green trademark will be valid?
A green trademark will be valid for four years but its validity may be prolonged for six additional years. [Decree, Section 42(3)]
Authors: Zsanett Szabó and András Fenyőházi
