The team Real Estate & Construction from CMS Pasquier Ciulla & Marquet decrypts the main measures of that new Code for the real estate sector.
Published in the Journal of Monaco on December 22th 2017, the law 1.456 adopted on December 12th 2017 establishes an Environmental Code which is consistent with the Prince’s desire to make Monaco « a model country respectful of nature ».
That Code creates several new legal principles, and first and foremost the right for everyone to live in a healthy environment, balanced, and respectful of the health and biodiversity.
Among the new general principles are also listed :
- The principle of prevention, according to which any person must prevent, or failing that, limit, the possible environmental damage ;
- The precautionary principle, which aims, in the absence of any absolute technical or scientific certainty, not to slow the establishment of preventive measures of a risk of irreversible damage to the health or the environment ;
- The principle of corrective action at the source, according to which anyone must give priority to a corrective action at the source of the environmental damages ;
- The classical principle of « polluteur pays », which leads to make the polluteur bear, in addition to the damages to the environment, any fee of prevention, reduction, and anti-pollution measures ;
- The principle of integration in public policies of sustainable development and protection of the environment.
Despite the fact those principles are not directly enforceable by the authorities or by a third party, but are applicable only in accordance with the defined conditions in the Environmental Code and/or further related regulations, it already concerns any builder, owner, or manager of real estate property in Monaco.
Thus, Title IV of the Ist Book of the Environmental Code provides that the State can make necessary to realize a preliminary study about the environmental impact for any construction project, demolition project, interior and exterior design of buildings and earthwork or of any work on the ground or in the subsurface of any public land and public or private ways.
Furthermore, Title III of the IInd Book announces the next regulations about energetic efficiency of buildings, being specified that such regulation could be accompanied by an incentive program with financial contributions to be provided according to the implemented measures taken in order to reduce the greenhouse gas emissions intensity.
Among from the legal provisions of Title I of IVth Book is also mentioned the framework of the new regulations related to installations subject to authorization and special supervision, such as factories, workshops and warehouse and « generally, any installation ran or owned by a public or private legal entity or individual » which could involve danger or drawback regarding to the environmental protection.
Title IV of the IInd Book also includes legal provisions related to the prevention and protection against natural and technological risks, involving to take appropriate actions such as the delimitation of sensitive areas and the establishment of plan and programs, and the definition of earthquake-resistant construction regulations by ministerial ruling.
Title V of the IInd Book concerns the environmental impact including noise, vibratory and visual nuisance.
Although the inspection of the Environmental Code’s application remains to the Administration and its sworn officers, whose powers are extended according to the Title II of the Vth Book, Title IV of the same Book also allows to anybody showing interest, or asserting an infringement to a right granted by the aforementioned Code, to communicate to the Administration any observation linked to the occurrence of an environmental damage, or the threat of an environmental damage, and to ask him to take any necessary and possible measure.
Finally, it may be noted that the the Vth Book of the Environmental Code establishes a new specific liability system (mostly for fault or negligence) in case of environmental damage, and a range of administrative and criminal sanctions.
In the absence of any transitional provision, those new rules are from now in effect despite the fact they need to be implemented by regulatory enforcement measures : they must be taken into consideration by the real estate sector and its economic agents in the framework of their new projects.
The team Real Estate and construction of CMS Pasquier Ciulla & Marquet remains available to answer any question the new Environmental Code may set off from the real estate sector.